Code of Virginia

Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
8/18/2019

Subtitle III. Production and Sale of Agricultural Products.

Chapter 32. Milk Commission.

§ 3.2-3200. Definitions.

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

"Affiliate" means any person or subsidiary thereof, who has, either directly or indirectly, actual or legal control over a distributor, whether by stock ownership or in any other manner.

"Books and records" mean books, records, accounts, contracts, memoranda, documents, papers, correspondence, or other data, pertaining to the business of the person in question.

"Commission" means the Milk Commission.

"Consumer" means any person, other than a milk distributor, who purchases milk for human consumption.

"Distributor" means any of the following persons engaged in the business of distributing, marketing, or in any manner handling fluid milk, in whole or in part, in fluid form for consumption in the Commonwealth:

1. Persons, regardless of whether any such person is a producer:

a. Who pasteurize or bottle milk or process milk into fluid milk;

b. Who sell or market fluid milk at wholesale or retail to: (i) hotels, restaurants, stores, or other establishments for consumption on the premises; (ii) stores or other establishments for resale; or (iii) consumers; or

c. Who operate stores or other establishments for the sale of fluid milk at retail for consumption off the premises.

2. Persons, wherever located or operating, whether within or without the Commonwealth, who purchase, market, or handle milk for resale as fluid milk in the Commonwealth.

"Health authorities" include the Board of Health, the Office of Dairy and Foods in the Department, and the local health authorities.

"Licensee" means a licensed milk distributor.

"Market" means any locality, or two or more localities, and surrounding territory designated by the Commission as a marketing area.

"Milk" means the clean lacteal secretion obtained by the complete milking of one or more healthy cows properly fed, housed, and kept; including milk that is cooled, pasteurized, standardized, or otherwise processed with a view to selling.

"Producer" means any person, regardless of whether they are also a distributor, who produces milk for sale as fluid milk in the Commonwealth.

"Producer-distributor" means a distributor who handles only milk produced by himself.

"Sanitary regulations" include all laws and ordinances relating to the production, handling, transportation, distribution, and sale of milk and, so far as applicable, regulations adopted by the Board or the health authorities.

"Subsidiary" means any person that a distributor or an affiliate of a distributor has, or several distributors collectively have, either directly or indirectly, actual or legal control, whether by stock ownership or in any other manner.

Code 1950, § 3-346; 1966, c. 702, § 3.1-425; 2008, c. 860.

§ 3.2-3201. Milk Commission; composition and appointment of members.

The Milk Commission is continued within the Department and shall report directly to the Commissioner. The Commission shall consist of an Administrator and seven members, all of whom shall be residents of the Commonwealth, appointed by the Governor, two of whom shall be producers, and five including the Administrator shall be consumers but none of such five latter members shall have any connection financially or otherwise with the production or distribution of milk or products derived therefrom. The remaining member of the Commission shall be a milk processor-distributor. The Administrator shall serve in an ex officio capacity without a vote. Any vacancies occurring shall be filled by appointment by the Governor. One member of the Commission shall act as chairman, who shall be elected annually by the membership of the Commission. No member shall serve as chairman and as Administrator and no chairman shall serve successive terms as chairman.

The Administrator shall devote full time to the duties of his office, which shall be located in the principal office of the Commission. The technical and other services for such Commission shall be performed, so far as practicable, by the Department, the Virginia Cooperative Extension Service, and the Virginia Agricultural Research and Experiment Station, without additional compensation. The Administrator may appoint a secretary and any such additional technical and other assistants and employees as may be necessary to carry out the provisions of this chapter, and prescribe their powers and duties. The Administrator shall supervise such personnel and shall prepare, approve, and submit all requests for appropriations and be responsible for all expenditures pursuant to appropriations.

Code 1950, § 3-347; 1958, c. 110; 1966, cc. 526, 702, § 3.1-426; 1974, c. 467; 1984, c. 444; 1985, c. 397; 2004, c. 57; 2008, c. 860.

§ 3.2-3202. Milk Commission membership terms.

The Administrator of the Commission shall hold office at the pleasure of the Governor for a term concurrent with the term of the Governor making the appointment or until a successor to that Administrator is appointed by the next succeeding Governor. The remaining seven members shall be appointed by the Governor for a term of four years. No member except the Administrator may serve for more than two consecutive terms of four years each. Any member appointed to fill an interim vacancy may be appointed for two additional consecutive terms of four years each after the expiration of the term of the interim vacancy that the member filled. After an absence of two years from the Commission, any former member may be reappointed for a maximum of one additional term of four years.

Code 1950, § 3-347.1; 1966, c. 526, § 3.1-426.1; 1974, c. 467; 1984, c. 355; 2008, c. 860.

§ 3.2-3203. Meetings; quorum.

The Commission shall meet on the call of the chairman or three of its members whenever he or they may deem necessary, and at such place as he or they may designate. Three members of the Commission shall constitute a quorum.

Code 1950, §§ 3-347.2, 3-351; 1966, cc. 526, 702, §§ 3.1-426.2, 3.1-429; 2008, c. 860.

§ 3.2-3204. General powers of the Milk Commission.

The Commission shall be vested with the following powers:

1. To confer and cooperate with the legally constituted authorities of other states and of the United States, with a view of securing a uniformity of milk control, with respect to milk coming into the Commonwealth and going out of the Commonwealth in interstate commerce, with a view of accomplishing the purposes of this chapter and to enter into a compact or compacts for such uniform system of milk control;

2. To investigate all matters pertaining to the production, processing, storage, transportation, distribution, and sale of milk in the Commonwealth;

3. To supervise, regulate, and control the production, transportation, processing, storage, distribution, delivery, and sale of milk for consumption within the Commonwealth;

4. To act as mediator or arbiter in any controversial issue that may arise among or between milk producers and distributors, as between themselves, or that may arise between them as groups;

5. To examine into the business, books, and accounts of any milk producer, association of producers, or milk distributors, their affiliates or subsidiaries; to issue subpoenas to milk producers, associations of producers, and milk distributors, and to require them to produce their records, books, and accounts; to subpoena any other person from whom information is desired;

6. To take depositions of witnesses within, or without, the Commonwealth. Any member of the Commission, or any employee designated by the Commission, may administer oaths to witnesses and sign and issue subpoenas; and

7. To make, adopt, and enforce all regulations or orders necessary to carry out the purposes of this chapter. Every order of the Commission shall be posted for inspection in the main office of the Commission, and a certified copy filed in the office of the Commissioner. An order, applying only to a person named therein, shall be served on the person affected. An order, that is required to be served, shall be served by personal delivery of a certified copy, or by mailing a certified copy in a sealed envelope, with postage prepaid, to each person affected; or, in the case of a corporation, to any officer or agent of the corporation upon whom legal process may be served. If an order is not required to be served, then it shall be posted in the main office of the Commission and filed in the office of the Commissioner, which shall constitute due and sufficient notice to any person affected by the order.

Code 1950, § 3-352; 1966, c. 702, § 3.1-430; 2008, c. 860.

§ 3.2-3205. Grant of specific power not to impair general power.

Any provision of this chapter conferring a general power upon the Commission shall not be impaired or qualified by the granting to the Commission by this chapter of a specific power.

Code 1950, § 3-353; 1966, c. 702, § 3.1-431; 2008, c. 860.

§ 3.2-3206. Public hearing required.

A. The Commission shall neither exercise its powers in any market, nor withdraw the exercise of its powers from any market, until after a public hearing is held for such market, and the Commission determines whether it will be in the public interest to exercise its powers in that market.

B. The Commission may on its own motion, call a public hearing as required under subsection A and shall call a public hearing upon the written application of a producers' association organized under Chapter 3 of Title 13.1 (§ 13.1-301 et seq.), supplying in the judgment of the Commission, a substantial proportion of the milk consumed in such market. If no such producers' association exists on such market, the Commission shall call a public hearing upon the written application of producers supplying a substantial proportion of the milk consumed in such market; and shall call a public hearing upon the written application of distributors distributing a substantial proportion of the milk consumed in that market.

C. The Commission may determine notice requirements and the time and location of any public hearing held under this section.

Code 1950, §§ 3-354 to 3-357; 1966, c. 702, §§ 3.1-432 to 3.1-435; 2008, c. 860.

§ 3.2-3207. Defining market areas.

The Commission may define a market area and define and fix the limits of the territorial area where milk shall be produced to supply a market area. Any producers, producer-distributors, or their successors currently shipping milk to any market may continue to do so until they voluntarily discontinue shipping to the designated milk market.

Code 1950, § 3-362; 1966, c. 702, § 3.1-441; 1974, c. 467; 2008, c. 860.

§ 3.2-3208. Establishing prices generally.

The Commission, after a public hearing and investigation, may establish the prices to be paid producers or associations of producers by distributors in any market, may fix the minimum and maximum wholesale and maximum retail prices to be charged for milk in any market, and may also establish different prices for different grades or classes of milk. The Commission may set different maximum retail prices for the same grade or class of milk on the basis of different methods of distribution. In determining the reasonableness of prices to be paid or charged in any market for any grade, quantity, or class of milk, the Commission shall be guided by all pertinent economic factors relevant to production, processing, and distribution of milk as they affect the public interest in maintaining an adequate supply of milk within the Commonwealth, including compliance with all sanitary regulations in force in such market, necessary operation, processing, storage, and delivery charges, the prices of other foods, and the welfare of the general public. The Commission may adopt a formula incorporating these economic factors that will adjust automatically the prices to be paid producers or associations of producers by distributors in any market, and then provide for the automatic adjustment of resale prices according to the result obtained by the use of this formula. Public hearings shall not be required for price adjustments obtained by use of a formula, but shall be held for adoption or amendment of the formula itself.

Code 1950, § 3-359; 1966, c. 702, § 3.1-437; 1974, c. 467; 2008, c. 860.

§ 3.2-3209. Establishing minimum retail price; exemption.

The Commission shall have no authority to establish a minimum retail price for milk, except upon a determination after a public hearing that the absence of a minimum retail price has caused or is about to cause a disruption in the Virginia milk market or some segment of the market that is likely to depress the producer price or has caused or is likely to cause a substantial reduction in competition between processor-distributors in an area, so as to adversely affect the public health and welfare that requires an adequate supply of milk at reasonable and fair prices. In accordance with the Administrative Process Act, § 2.2-4000 et seq. and in particular § 2.2-4002, the Commission may establish minimum retail prices on an emergency basis, prior to public hearing.

The Commission, in establishing any minimum retail price when it deems it necessary to do so, shall impose a minimum retail price only for an area or political subdivision wherein the public interest as herein set forth justifies a minimum retail price being set and shall be guided by the same factors used in determining the reasonableness of prices under § 3.2-3208. The Commission shall periodically review all outstanding minimum retail price orders to insure that they do not remain in effect any longer than the public interest requires.

1974, c. 467, § 3.1-437.1; 2008, c. 860.

§ 3.2-3210. Accounting system for distributors; inspection and audit of books and records; offenses; penalty.

The Milk Commission shall prepare and adopt a system of accounting designed to show, for each distributor of milk and milk products, under the supervision of the Commission, the total purchases by any distributor of each grade or class of milk; the total sales by each distributor and the revenue therefrom, for each grade or class of milk and the quantity thereof. Such accounting system shall be designed to show total purchases including the respective grades or classes of milk bought, as well as the total sales and the respective classes or grades of milk sold.

Each distributor of milk and milk products under the supervision of the Commission shall adopt and use the system of accounting adopted by the Milk Commission. The books and records of each distributor shall be open to inspection by the Commission or its agents during regular business hours, and shall be audited by it at such regular intervals as shall be prescribed by the Milk Commission.

It shall be unlawful for any distributor to pay for milk upon any such basis of grade or class lower than that upon which such milk is sold or used by him. Nothing herein shall prevent the sale of a grade or class of milk by a distributor as milk of a lower grade or class. It shall be unlawful for any distributor to fail to use the system of accounting herein prescribed or refuse to allow the same to be inspected or audited.

Code 1950, § 3-359.1; 1956, c. 74; 1966, c. 702, § 3.1-438; 2008, c. 860.

§ 3.2-3211. Right of entry and inspection; publication of information.

Any Commission employee designated for the purpose, shall have access to, and may enter at all reasonable hours, all places where milk is stored, bottled, or manufactured into food products and any designated employee shall have the power to inspect books and records in any place within the Commonwealth for the purpose of ascertaining facts to enable the Commission to administer this chapter. All information ascertained shall be confidential, unless the parties concerned agree to its being given out. The Commission may combine such information for any market and make it public.

Code 1950, § 3-361; 1966, c. 702, § 3.1-440; 2008, c. 860.

§ 3.2-3212. Licenses generally.

The Commission may require all distributors in any market designated by the Commission to be licensed by the Commission for the purpose of carrying out the provisions of this chapter. The Commission may decline to grant a license, or may suspend or revoke a license already granted upon due notice and after a hearing. The Commission may classify licenses, and may issue licenses to distributors to process or store or sell milk to a particular city or to a particular market within the Commonwealth.

Code 1950, § 3-360; 1966, c. 702, § 3.1-439; 2008, c. 860.

§ 3.2-3213. Report of licensees.

Each licensee shall furnish to the Commission verified reports containing information as required by the Commission.

Code 1950, § 3-364; 1966, c. 702, § 3.1-443; 2008, c. 860.

§ 3.2-3214. Unlawful buying and selling.

No distributor in a market covered by the provisions of this chapter shall buy milk from producers, or others, for sale within the Commonwealth, or sell or distribute milk within the Commonwealth, unless the distributor is duly licensed under the provisions of this chapter. It shall be unlawful for a distributor to buy milk from or sell milk to a distributor who is not licensed as required by this chapter. It shall be unlawful for any distributor to deal in, or handle milk if such distributor has reason to believe it has previously been dealt in, or handled, in violation of the terms and provisions of this chapter.

Code 1950, § 3-365; 1966, c. 702, § 3.1-444; 2008, c. 860.

§ 3.2-3215. Application for license.

Each distributor shall submit an application to the Commission for a license to operate as a distributor by mail, or otherwise, within five days after the provisions of this chapter become effective in a market. Thereafter, any distributor shall obtain a license to operate as a distributor before beginning business in that market. The application shall be made on forms furnished by the Commission.

Code 1950, § 3-366; 1966, c. 702, § 3.1-445; 2008, c. 860.

§ 3.2-3216. Licenses to be in addition to those required by existing laws.

The licenses required by this chapter shall be in addition to any other licenses required by existing laws of the Commonwealth or by any municipal ordinance.

Code 1950, § 3-367; 1966, c. 702, § 3.1-446; 2008, c. 860.

§ 3.2-3217. Appeals generally.

A. Any person affected by and claiming the unlawfulness of any regulation of the Commission, or person aggrieved by and claiming the unlawfulness of a case decision or an order of the Commission may appeal to the Circuit Court where the principal office of the Commission is located. Except as otherwise provided in this section, Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act shall govern such appeal.

B. Upon filing of its pleadings by the Commission the cause shall be matured for hearing, and upon application of either party, the cause shall be placed at the head of the docket and heard forthwith.

C. Mere technical irregularities in the procedure of the Commission shall not be the basis of the decision of the court. In an appeal from an order or decision of the Commission, the case shall be heard upon the record certified to the court by the Commission. Additional testimony shall not be taken before the court, except to clarify the record or to introduce evidence as to the effect of the order upon the business of parties to the record below, or of producers standing in the same position as producer parties of record, but the court may, in proper cases, remand the record of the Commission for the taking of such further testimony as was not available upon the hearing appealed from, or such other testimony as the court shall provide may be taken. No part of the record, containing verbal or documentary evidence, shall be disregarded by courts because of technical rules of evidence.

Code 1950, §§ 3-369, 3-371; 1966, c. 702, §§ 3.1-448, 3.1-450; 1996, c. 573; 2008, c. 860.

§ 3.2-3218. Penalties for failure to comply with subpoenas; compelling obedience.

Any person failing to comply with any subpoena issued by the Commission or pursuant to its authority is guilty of a Class 2 misdemeanor, and each day during which such violation shall continue shall be deemed a separate offense. In the event any person shall fail to comply with any regulation or order of the Commission, or obey any subpoena issued, or in the event of the refusal of any witness to testify to any matter concerning which he lawfully may be interrogated by the Commission or its representative, it shall be the duty of the Circuit Court where the principal offices of the Commission are located, upon application of the Commission, to compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court, refusal to testify therein, or disobedience of an order or decree of the court. The proceedings herein authorized in the Circuit Court to compel obedience shall be in addition to the provisions of this section defining what shall constitute a misdemeanor and providing and prescribing the punishment therefor.

Code 1950, § 3-372; 1966, c. 702, § 3.1-451; 2008, c. 860.

§ 3.2-3219. Annual budget; assessment of distributors and producers; bond requirements.

The Commission shall prepare an annual budget and shall collect the sums of money required for this budget from the licensed distributors in markets where the provisions of this chapter are in operation. The expenses of the Commission, including salaries and the per diem of such personnel as the Commission finds it necessary to employ to properly carry out its functions under this chapter shall be met by an assessment of not over five cents ($0.05) per 100 pounds of milk, and cream (converted to terms of milk) handled by distributors and not over five cents ($0.05) per 100 pounds of milk, and cream (converted to terms of milk) sold by producers; these assessments to be the same per 100 pounds on producers and distributors. The exact amount of each monthly or semimonthly assessment shall be determined by the Commission as necessary to cover its expenses. All assessments shall be paid at the time the distributors pay the producers for the milk. All officers and employees of the Commission, who handle funds of the Commission or who sign or countersign checks upon such funds, shall severally give bond in such amount and with such sureties as shall be determined by the Commission. The cost of the bonds shall be paid by the Commission and the Commission shall determine the amount and sufficiency of the bonds.

Code 1950, § 3-373; 1958, c. 110; 1966, c. 702, § 3.1-452; 1974, c. 467; 1986, c. 408; 2008, c. 860.

§ 3.2-3220. Virginia Milk Commission Assessments Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Milk Commission Assessments Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All receipts from assessments paid under 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 solely for the purposes of administering 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 Administrator or his duly authorized agent.

Code 1950, § 3-374; 1966, c. 702, § 3.1-453; 2008, c. 860.

§ 3.2-3221. Injunction.

If any person violates any provision of this chapter or the regulations adopted under this chapter, then either the Commissioner or the State Health Commissioner may petition any appropriate circuit for relief by injunction, without being compelled to allege or prove that an adequate remedy at law does not exist.

Code 1950, § 3-379; 1966, c. 702, § 3.1-458; 2008, c. 860.

§ 3.2-3222. Penalties.

Any person violating any provision of this chapter or of any license issued by the Commission is guilty of a Class 2 misdemeanor. Each day during which such violation shall continue shall be deemed a separate violation. Prosecutions shall be instituted by the attorney for the Commonwealth.

Code 1950, § 3-380; 1966, c. 702, § 3.1-459; 2008, c. 860.

§ 3.2-3223. Marketing agreements not deemed monopolistic or in restraint of trade.

The making of marketing agreements between producers' cooperative marketing associations and distributors and producer-distributors under the provisions of this chapter shall not be deemed a combination in restraint of trade or an illegal monopoly; or an attempt to lessen competition or fix prices arbitrarily, nor shall the marketing contract or agreements between the association and the distributors and producer-distributors, or any agreements authorized in this chapter, be considered illegal or in restraint of trade.

Code 1950, § 3-382; 1966, c. 702, § 3.1-461; 2008, c. 860.

§ 3.2-3224. Chapter inapplicable to interstate commerce.

No provision of this chapter shall apply or be construed to apply to foreign or interstate commerce, except insofar as the same may be effective pursuant to the United States Constitution and to the laws of the United States enacted pursuant thereto.

Code 1950, § 3-381; 1966, c. 702, § 3.1-460; 2008, c. 860.

Chapter 33. Southern Dairy Compact.

§ 3.2-3300. Southern Dairy Compact; form of compact.

The Southern Dairy Compact is enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

ARTICLE I. Statement of Purpose, Findings, and Declaration of Policy.

§ 1. Statement of purpose, findings, and declaration of policy.

The purpose of this compact is to recognize the interstate character of the southern dairy industry and the prerogative of the states under the United States Constitution to form an interstate commission for the southern region. The mission of the Commission is to take such steps as are necessary to assure the continued viability of dairy farming in the South, and to assure consumers of an adequate, local supply of pure and wholesome milk.

The participating states find and declare that the dairy industry is an essential agricultural activity of the South. Dairy farms, and associated suppliers, marketers, processors, and retailers, are an integral component of the region's economy. Their ability to provide a stable, local supply of pure, wholesome milk is a matter of great importance to the health and welfare of the region.

The participating states further find that dairy farms are essential, and they are an integral part of the region's rural communities. The farms preserve land for agricultural purposes and provide needed economic stimuli for rural communities.

By entering into this compact, the participating states affirm that their ability to regulate the price that southern dairy farmers receive for their product is essential to the public interest. Assurance of a fair and equitable price for dairy farmers ensures their ability to provide milk to the market and the vitality of the southern dairy industry, with all the associated benefits.

Recent dramatic price fluctuations, with a pronounced downward trend, threaten the viability and stability of the southern dairy region. Historically, individual state regulatory action had been an effective emergency remedy available to farmers confronting a distressed market. The system of federal orders, implemented by the Agricultural Marketing Agreement Act of 1937, establishes only minimum prices paid to producers for raw milk, without preempting the power of states to regulate milk prices above the minimum levels so established.

In today's regional dairy marketplace, cooperative, rather than individual state action is needed to more effectively address the market disarray. Under our constitutional system, properly authorized states acting cooperatively may exercise more power to regulate interstate commerce than they may assert individually without such authority. For this reason, the participating states invoke their authority to act in common agreement, with the consent of Congress, under the compact clause of the Constitution.

In establishing their constitutional regulatory authority over the region's fluid milk market by this compact, the participating states declare their purpose that this compact neither displace the system of federal orders nor encourage the merging of federal orders. Specific provisions of the compact itself set forth this basic principle.

Designed as a flexible mechanism able to adjust to changes in a regulated marketplace, the compact also contains a contingency provision should the system of federal orders be discontinued. In that event, the interstate commission may regulate the marketplace in lieu of the system of federal orders. This contingent authority does not anticipate such a change, however, and should not be so construed. It is only provided should developments in the market other than establishment of this compact result in discontinuance of the system of federal orders.

ARTICLE II. Definitions and Rules of Construction.

§ 2. Definitions.

For the purposes of this compact, and of any supplemental or concurring legislation enacted pursuant thereto, except as may be otherwise required by the context:

"Class I milk" means milk disposed of in fluid form or as a fluid milk product, subject to further definition in accordance with the principles expressed in subsection (b) of § 3.

"Commission" means the Southern Dairy Compact Commission established by this compact.

"Commission marketing order" means regulations adopted by the Commission pursuant to §§ 9 and 10 of this compact in place of a terminated federal marketing order or state dairy regulation. Such order may apply throughout the region or in any part or parts thereof as defined in the regulations of the Commission. Such order may establish minimum prices for any or all classes of milk.

"Compact" means this interstate compact.

"Compact over-order price" means a minimum price required to be paid to producers for Class I milk established by the Commission in regulations adopted pursuant to §§ 9 and 10 of this compact, which is above the price established in federal marketing orders or by state farm price regulation in the regulated area. Such price may apply throughout the region or in any part or parts thereof as defined in the regulations of the Commission.

"Milk" means the lacteal secretion of cows and includes all skim, butterfat, or other constituents obtained from separation or any other process. The term is used in its broadest sense and may be further defined by the Commission for regulatory purposes.

"Partially regulated plant" means a milk plant not located in a regulated area but having Class I distribution within such area. Commission regulations may exempt plants having such distribution or receipts in amounts less than the limits defined therein.

"Participating state" means a state which has become a party to this compact by the enactment of concurring legislation.

"Pool plant" means any milk plant located in a regulated area.

"Region" means the territorial limits of the states which are parties to this compact.

"Regulated area" means any area within the region governed by and defined in regulations establishing a compact over-order price or commission marketing order.

"State dairy regulation" means any state regulation of dairy prices and associated assessments, whether by statute, marketing order, or otherwise.

§ 3. Rules of construction.

(a) This compact shall not be construed to displace existing federal milk marketing orders or state dairy regulation in the region but to supplement them. In the event some or all federal orders in the region are discontinued, the compact shall be construed to provide the Commission the option to replace them with one or more commission marketing orders pursuant to this compact.

(b) This compact shall be construed liberally in order to achieve the purposes and intent enunciated in § 1. It is the intent of this compact to establish a basic structure by which the Commission may achieve those purposes through the application, adaptation, and development of the regulatory techniques historically associated with milk marketing and to afford the Commission broad flexibility to devise regulatory mechanisms to achieve the purposes of this compact. In accordance with this intent, the technical terms which are associated with market order regulation and which have acquired commonly understood general meanings are not defined herein but the Commission may further define the terms used in this compact and develop additional concepts and define additional terms as it may find appropriate to achieve its purposes.

ARTICLE III. Commission Established.

§ 4. Commission established.

There is hereby created a commission to administer the compact, composed of delegations from each state in the region. The Commission shall be known as the Southern Dairy Compact Commission. A delegation shall include not less than three nor more than five persons. Each delegation shall include at least one dairy farmer who is engaged in the production of milk at the time of appointment or reappointment, and one consumer representative. Delegation members shall be residents and voters of, and subject to such confirmation process as is provided for in, the appointing state. Delegation members shall serve no more than three consecutive terms with no single term of more than four years, and be subject to removal for cause. In all other respects, delegation members shall serve in accordance with the laws of the state represented. The compensation, if any, of the members of a state delegation shall be determined and paid by each state, but their expenses shall be paid by the Commission.

§ 5. Voting requirements.

All actions taken by the Commission, except for the establishment or termination of an over-order price or commission marketing order, and the adoption, amendment, or rescission of the Commission's bylaws, shall be by majority vote of the delegations present. Each state delegation shall be entitled to one vote in the conduct of the Commission's affairs. Establishment or termination of an over-order price or commission marketing order shall require at least a two-thirds vote of the delegations present. The establishment of a regulated area that covers all or part of a participating state shall require also the affirmative vote of that state's delegation. A majority of the delegations from the participating states shall constitute a quorum for the conduct of the Commission's business.

§ 6. Administration and management.

(a) The Commission shall elect annually from among the members of the participating state delegations a chairperson, a vice-chairperson, and a treasurer. The Commission shall appoint an executive director and fix his or her duties and compensation. The executive director shall serve at the pleasure of the Commission, and, together with the treasurer, shall be bonded in an amount determined by the Commission. The Commission may establish through its bylaws an executive committee composed of one member elected by each delegation.

(b) The Commission shall adopt bylaws for the conduct of its business by a two-thirds vote and shall have the power by the same vote to amend and rescind these bylaws. The Commission shall publish its bylaws in convenient form with the appropriate agency or officer in each of the participating states. The bylaws shall provide for appropriate notice to the delegations of all Commission meetings and hearings and of the business to be transacted at such meetings or hearings. Notice also shall be given to other agencies or officers of participating states as provided by the laws of those states.

(c) The Commission shall file an annual report with the Secretary of Agriculture of the United States, and with each of the participating states by submitting copies to the Governor, both houses of the legislature, and the head of the state department having responsibilities for agriculture.

(d) In addition to the powers and duties elsewhere prescribed in this compact, the Commission may engage in all of the following:

(1) Sue and be sued in any state or federal court.

(2) Have a seal and alter the same at pleasure.

(3) Acquire, hold, and dispose of real and personal property by gift, purchase, lease, license, or other similar manner, for its corporate purposes.

(4) Borrow money and to issue notes, to provide for the rights of the holders thereof, and to pledge the revenue of the Commission as security therefor, subject to the provisions of § 18 of this compact.

(5) Appoint such officers, agents, and employees as it may deem necessary, prescribe their powers, duties, and qualifications.

(6) Create and abolish such offices, employments, and positions as it deems necessary for the purposes of the compact and provide for the removal, term, tenure, compensation, fringe benefits, pension, and retirement rights of its officers and employees.

(7) Retain personal services on a contract basis.

§ 7. Rule-making power.

In addition to the power to promulgate a compact over-order price or commission marketing orders as provided by this compact, the Commission is further empowered to make and enforce such additional rules and regulations as it deems necessary to implement any provisions of this compact, or to effectuate in any other respect the purposes of this compact.

ARTICLE IV. Powers of the Commission.

§ 8. Powers to promote regulatory uniformity, simplicity, and interstate cooperation.

The Commission may:

(1) Investigate or provide for investigations or research projects designed to review the existing laws and regulations of the participating states, to consider their administration and costs, and to measure their impact on the production and marketing of milk and their effects on the shipment of milk and milk products within the region.

(2) Study and recommend to the participating states joint or cooperative programs for the administration of the dairy marketing laws and regulations and to prepare estimates of cost savings and benefits of such programs.

(3) Encourage the harmonious relationships between the various elements in the industry for the solution of their material problems. Conduct symposia or conferences designed to improve industry relations, or a better understanding of problems.

(4) Prepare and release periodic reports on activities and results of the Commission's efforts to the participating states.

(5) Review the existing marketing system for milk and milk products and recommend changes in the existing structure for assembly and distribution of milk which may assist, improve, or promote more efficient assembly and distribution of milk.

(6) Investigate costs and charges for producing, hauling, handling, processing, distributing, selling, and for all other services, performed with respect to milk.

(7) Examine current economic forces affecting producers, probable trends in production and consumption, the level of dairy farm prices in relation to costs, the financial conditions of dairy farmers, and the need for an emergency order to relieve critical conditions on dairy farms.

§ 9. Equitable farm prices.

(a) The powers granted in this section and § 10 shall apply only to the establishment of a compact over-order price, so long as federal milk marketing orders remain in effect in the region. In the event that any or all such orders are terminated, this article authorizes the Commission to establish one or more commission marketing orders, as herein provided, in the region or parts thereof as defined in the order.

(b) A compact over-order price established pursuant to this section shall apply only to Class I milk. Such compact over-order price shall not exceed one dollar and fifty cents ($1.50) per gallon at Atlanta, Georgia, however, this compact over-order price shall be adjusted upward or downward at other locations in the region to reflect differences in minimum federal order prices. Beginning in 1990, and using that year as a base, the foregoing one dollar and fifty cents ($1.50) per gallon maximum shall be adjusted annually by the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. For purposes of the pooling and equalization of an over-order price, the value of milk used in other use classifications shall be calculated at the appropriate class price established pursuant to the applicable federal order or state dairy regulation and the value of unregulated milk shall be calculated in relation to the nearest prevailing class price in accordance with and subject to such adjustments as the Commission may prescribe in regulations.

(c) A commission marketing order shall apply to all classes and uses of milk.

(d) The Commission may establish a compact over-order price for milk to be paid by pool plants and partially regulated plants. The Commission also may establish a compact over-order price to be paid by all other handlers receiving milk from producers located in a regulated area. This price shall be established either as a compact over-order price or by one or more commission marketing orders. Whenever such a price has been established by either type of regulation, the legal obligation to pay such price shall be determined solely by the terms and purpose of the regulation without regard to the situs of the transfer of title, possession, or any other factors not related to the purposes of the regulation and this compact. Producer-handlers as defined in an applicable federal market order shall not be subject to a compact over-order price. The Commission shall provide for similar treatment of producer-handlers under commission marketing orders.

(e) In determining the price, the Commission shall consider the balance between production and consumption of milk and milk products in the regulated area, the costs of production including, but not limited to, the price of feed, the cost of labor including the reasonable value of the producer's own labor and management, machinery expense and interest expense, the prevailing price for milk outside the regulated area, the purchasing power of the public, and the price necessary to yield a reasonable return to the producer and distributor.

(f) When establishing a compact over-order price, the Commission shall take such other action as is necessary and feasible to help ensure that the over-order price does not cause or compensate producers so as to generate local production of milk in excess of those quantities necessary to assure consumers of an adequate supply for fluid purposes.

(g) The Commission shall whenever possible enter into agreements with state or federal agencies for exchange of information or services for the purpose of reducing regulatory burden and cost of administering the compact. The Commission may reimburse other agencies for the reasonable cost of providing these services.

§ 10. Optional provisions for pricing order.

Regulations establishing a compact over-order price or a commission marketing order may contain, but shall not be limited to, any of the following:

(1) Provisions classifying milk in accordance with the form in which or purpose for which it is used, or creating a flat pricing program.

(2) With respect to a commission marketing order only, provisions establishing or providing a method for establishing separate minimum prices for each use classification prescribed by the Commission, or a single minimum price for milk purchased from producers or associations of producers.

(3) With respect to an over-order minimum price, provisions establishing or providing a method for establishing such minimum price for Class I milk.

(4) Provisions for establishing either an over-order price or a commission marketing order may make use of any reasonable method for establishing such price or prices including flat pricing and formula pricing. Provision may also be made for location adjustments, zone differentials, and competitive credits with respect to regulated handlers who market outside the regulated area.

(5) Provisions for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered, or for the payment of producers delivering milk to the same handler of uniform prices for all milk delivered by them.

a. With respect to regulations establishing a compact over-order price, the Commission may establish one equalization pool within the regulated area for the sole purpose of equalizing returns to producers throughout the regulated area.

b. With respect to any commission marketing order, as defined in § 2, subdivision (3), which replaces one or more terminated federal orders or state dairy regulation, the marketing area of now separate state or federal orders shall not be merged without the affirmative consent of each state, voting through its delegation, which is partly or wholly included within any such new marketing area.

(6) Provisions requiring persons who bring Class I milk into the regulated area to make compensatory payments with respect to all such milk to the extent necessary to equalize the cost of milk purchased by handlers subject to a compact over-order price or commission marketing order. No such provisions shall discriminate against milk producers outside the regulated area. The provisions for compensatory payments may require payment of the difference between the Class I price required to be paid for such milk in the state of production by a federal milk marketing order or state dairy regulation and the Class I price established by the compact over-order price or commission marketing order.

(7) Provisions specially governing the pricing and pooling of milk handled by partially regulated plants.

(8) Provisions requiring that the account of any person regulated under the compact over-order price shall be adjusted for any payments made to or received by such persons with respect to a producer settlement fund of any federal or state milk marketing order or other state dairy regulation within the regulated area.

(9) Provision requiring the payment by handlers of an assessment to cover the costs of the administration and enforcement of such order pursuant to subsection (a) of § 18 of Article VII.

(10) Provisions for reimbursement to participants of the Women, Infants and Children Special Supplemental Food Program of the United States Child Nutrition Act of 1966.

(11) Other provisions and requirements as the Commission may find are necessary or appropriate to effectuate the purposes of this compact and to provide for the payment of fair and equitable minimum prices to producers.

ARTICLE V. Rule-Making Procedure.

§ 11. Rule-making procedure.

Before promulgation of any regulations establishing a compact over-order price or commission marketing order, including any provision with respect to milk supply under subsection (f) of § 9, or amendment thereof, as provided in Article IV, the Commission shall conduct an informal rule-making proceeding to provide interested persons with an opportunity to present data and views. Such rule-making proceeding shall be governed by § 4 of the Federal Administrative Procedure Act, as amended (5 U.S.C. § 553). In addition, the Commission shall, to the extent practicable, publish notice of rule-making proceedings in the official register of each participating state. Before the initial adoption of regulations establishing a compact over-order price or a commission marketing order and thereafter before any amendment with regard to prices or assessments, the Commission shall hold a public hearing. The Commission may commence a rule-making proceeding on its own initiative or may in its sole discretion act upon the petition of any person including individual milk producers, any organization of milk producers or handlers, general farm organizations, consumer or public interest groups, and local, state or federal officials.

§ 12. Findings and referendum.

(a) In addition to the concise general statement of basis and purpose required by § 4(b) of the Federal Administrative Procedure Act, as amended (5 U.S.C. § 553 (c)), the Commission shall make findings of fact with respect to:

(1) Whether the public interest will be served by the establishment of minimum milk prices to dairy farmers under Article IV.

(2) What level of prices will assure that producers receive a price sufficient to cover their costs of production and will elicit an adequate supply of milk for the inhabitants of the regulated area and for manufacturing purposes.

(3) Whether the major provisions of the order, other than those fixing minimum milk prices, are in the public interest and are reasonably designed to achieve the purposes of the order.

(4) Whether the terms of the proposed regional order or amendment are approved by producers as provided in § 13.

§ 13. Producer referendum.

(a) For the purpose of ascertaining whether the issuance or amendment of regulations establishing a compact over-order price or a commission marketing order, including any provision with respect to milk supply under subsection (f) of § 9, is approved by producers, the Commission shall conduct a referendum among producers. The referendum shall be held in a timely manner, as determined by regulation of the Commission. The terms and conditions of the proposed order or amendment shall be described by the Commission in the ballot used in the conduct of the referendum, but the nature, content, or extent of such description shall not be a basis for attacking the legality of the order or any action relating thereto.

(b) An order or amendment shall be deemed approved by producers if the Commission determines that it is approved by at least two-thirds of the voting producers who, during a representative period determined by the Commission, have been engaged in the production of milk the price of which would be regulated under the proposed order or amendment.

(c) For purposes of any referendum, the Commission shall consider the approval or disapproval by any cooperative association of producers, qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the Capper-Volstead Act, bona fide engaged in marketing milk, or in rendering services for or advancing the interests of producers of such commodity, as the approval or disapproval of the producers who are members or stockholders in, or under contract with, such cooperative association of producers, except as provided in subdivision (1) of this subsection and subject to the provisions of subdivisions (2) through (5) of this subsection.

(1) No cooperative that has been formed to act as a common marketing agency for both cooperatives and individual producers shall be qualified to block vote for either.

(2) Any cooperative that is qualified to block vote shall, before submitting its approval or disapproval in any referendum, give prior written notice to each of its members as to whether and how it intends to cast its vote. The notice shall be given in a timely manner as established, and in the form prescribed, by the Commission.

(3) Any producer may obtain a ballot from the Commission in order to register approval or disapproval of the proposed order.

(4) A producer who is a member of a cooperative which has provided notice of its intent to approve or not to approve a proposed order, and who obtains a ballot and with such ballot expresses his or her approval or disapproval of the proposed order, shall notify the Commission as to the name of the cooperative of which he or she is a member, and the Commission shall remove such producer's name from the list certified by such cooperative with its corporate vote.

(5) In order to ensure that all milk producers are informed regarding a proposed order, the Commission shall notify all milk producers that an order is being considered and that each producer may register his or her approval or disapproval with the Commission either directly or through his or her cooperative.

§ 14. Termination of over-order price or marketing order.

(a) The Commission shall terminate any regulations establishing an over-order price or commission marketing order issued under this Article whenever it finds that such order or price obstructs or does not tend to effectuate the declared policy of this compact.

(b) The Commission shall terminate any regulations establishing an over-order price or a commission marketing order issued under this Article whenever it finds that such termination is favored by a majority of the producers who, during a representative period determined by the Commission, have been engaged in the production of milk, the price of which is regulated by such order; but such termination shall be effective only if announced on or before such date as may be specified in such marketing agreement or order.

(c) The termination or suspension of any order or provision thereof, shall not be considered an order within the meaning of this Article and shall require no hearing, but shall comply with the requirements for informal rule making prescribed by § 4 of the Federal Administrative Procedure Act, as amended (5 U.S.C. § 553).

ARTICLE VI. Enforcement.

§ 15. Records, reports, access to premises.

(a) The Commission may by rule and regulation prescribe record keeping and reporting requirements for all regulated persons. For purposes of the administration and enforcement of this compact, the Commission may examine the books and records of any regulated person relating to his or her milk business and for that purpose, the Commission's properly designated officers, employees, or agents shall have full access during normal business hours to the premises and records of all regulated persons.

(b) Information furnished to or acquired by the Commission officers, employees, or its agents pursuant to this section shall be confidential and not subject to disclosure except to the extent that the Commission deems disclosure to be necessary in any administrative or judicial proceeding involving the administration or enforcement of this compact, an over-order price, a compact marketing order, or other regulations of the Commission. The Commission may adopt rules further defining the confidentiality of information pursuant to this section. Nothing in this section shall be deemed to prohibit (i) the issuance of general statements based upon the reports of a number of handlers, which do not identify the information furnished by any person, or (ii) the publication by direction of the Commission of the name of any person violating any regulation of the Commission, together with a statement of the particular provisions violated by such person.

(c) No officer, employee, or agent of the Commission shall intentionally disclose information, by inference or otherwise, that is made confidential pursuant to this section. Any person violating the provisions of this section shall, upon conviction, be subject to a fine of not more than one thousand dollars ($1,000) or to imprisonment for not more than one year, or both, and shall be removed from office. The Commission shall refer any allegation of a violation of this section to the appropriate state enforcement authority or United States Attorney.

§ 16. Subpoena, hearings, and judicial review.

(a) The Commission is hereby authorized and empowered by its members and its properly designated officers to administer oaths and issue subpoenas throughout all signatory states to compel the attendance of witnesses and the giving of testimony and the production of other evidence.

(b) Any handler subject to an order may file a written petition with the Commission stating that any order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. The handler shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the Commission. After such hearing, the Commission shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.

(c) The district courts of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, are hereby vested with jurisdiction to review such ruling, provided a complaint for that purpose is filed within 30 days from the date of the entry of the ruling. Service of process in these proceedings may be had upon the Commission by delivering to it a copy of the complaint. If the court determines that the ruling is not in accordance with law, it shall remand such proceedings to the Commission with directions either (i) to make such ruling as the court shall determine to be in accordance with law, or (ii) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subdivision shall not impede, hinder, or delay the Commission from obtaining relief pursuant to § 17. Any proceedings brought pursuant to § 17, except where brought by way of counterclaim in proceedings instituted pursuant to this section, shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this section.

§ 17. Enforcement with respect to handlers.

(a) Any violation by a handler of the provisions of regulation establishing an over-order price or a commission marketing order, or other regulations adopted pursuant to this compact shall:

(1) Constitute a violation of the laws of each of the signatory states. Such violation shall render the violator subject to a civil penalty in an amount as may be prescribed by the laws of each of the participating states, recoverable in any state or federal court of competent jurisdiction. Each day such violation continues shall constitute a separate violation.

(2) Constitute grounds for the revocation of license or permit to engage in the milk business under the applicable laws of the participating states.

(b) With respect to handlers, the Commission shall enforce the provisions of this compact, regulations establishing an over-order price, a commission marketing order or other regulations adopted hereunder by:

(1) Commencing an action for legal or equitable relief brought in the name of the Commission in any state or federal court of competent jurisdiction; or

(2) Referral to the state agency for enforcement by judicial or administrative remedy with the agreement of the appropriate state agency of a participating state.

(c) With respect to handlers, the Commission may bring an action for injunction to enforce the provisions of this compact or the order or regulations adopted thereunder without being compelled to allege or prove that an adequate remedy of law does not exist.

ARTICLE VII. Finance.

§ 18. Finance of start-up and regular costs.

(a) To provide for its start-up costs, the Commission may borrow money pursuant to its general power under § 6, subsection (d), subdivision 4. In order to finance the cost of administration and enforcement of this compact, including payback of start-up costs, the Commission may collect an assessment from each handler who purchases milk from producers within the region. If imposed, this assessment shall be collected on a monthly basis for up to one year from the date the Commission convenes, in an amount not to exceed $.015 per hundred weight of milk purchased from producers during the period of the assessment. The initial assessment may apply to the projected purchases of handlers for the two-month period following the date the Commission convenes. In addition, if regulations establishing an over-order price or a compact marketing order are adopted, they may include an assessment for the specific purpose of their administration. These regulations shall provide for establishment of a reserve for the Commission's ongoing operating expenses.

(b) The Commission shall not pledge the credit of any participating state or of the United States. Notes issued by the Commission and all other financial obligations incurred by it, shall be its sole responsibility and no participating state or the United States shall be liable therefor.

§ 19. Audit and accounts.

(a) The Commission shall keep accurate accounts of all receipts and disbursements, which shall be subject to the audit and accounting procedures established under its rules. In addition, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become part of the annual report of the Commission.

(b) The accounts of the Commission shall be open at any reasonable time for inspection by duly constituted officers of the participating states and by any persons authorized by the Commission.

(c) Nothing contained in this Article shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any participating state or of the United States.

ARTICLE VIII. Entry into Force; Additional Members and Withdrawal.

§ 20. Entry into force; additional members.

The compact shall enter into force effective when enacted into law by any three states of the group of states composed of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia and when the consent of Congress has been obtained.

§ 21. Withdrawal from compact.

Any participating state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after notice in writing of the withdrawal is given to the Commission and the governors of all the participating states. No withdrawal shall affect any liability already incurred by or chargeable to a participating state prior to the time of such withdrawal.

§ 22. Severability.

If any part or provision of this compact is adjudged invalid by any court, such judgment shall be confined in its operation to the part or provision directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this compact. In the event Congress consents to this compact subject to conditions, said conditions shall not impair the validity of this compact when said conditions are accepted by three or more compacting states. A compact state may accept the conditions of Congress by implementation of this compact.

1998, c. 706, § 3.1-461.1; 2008, c. 860.

§ 3.2-3301. Southern Dairy Compact Commission members.

The Governor shall appoint five delegates from Virginia to represent the Commonwealth on the Southern Dairy Compact Commission, including two dairy farmers who are engaged in the production of milk, two consumer representatives, and one dairy processor. The Governor's appointments shall be subject to confirmation by the General Assembly. Initial appointments shall be one dairy farmer, one consumer representative, and one dairy processor each for a term of four years and one dairy farmer and one consumer representative each for a term of two years. Thereafter, delegates shall be appointed for four-year terms. No delegate shall serve more than three consecutive terms. Vacancies in the membership of the delegation shall be filled by the Governor for the unexpired term.

1998, c. 706, § 3.1-461.2; 2008, c. 860.

§ 3.2-3302. Cooperation of departments, agencies, and officers of the Commonwealth.

All departments, agencies, and officers of the Commonwealth and its political subdivisions are hereby authorized to cooperate with the Southern Dairy Compact Commission in furtherance of any of its activities pursuant to the Compact.

1998, c. 706, § 3.1-461.3; 2008, c. 860.

§ 3.2-3303. Milk Commission powers preserved.

Nothing in this chapter shall be construed to diminish or limit the powers and responsibilities of the Milk Commission established by Chapter 32 of this title or to invalidate any action of the Milk Commission previously taken including any regulation adopted by the Milk Commission.

1998, c. 706, § 3.1-461.4; 2008, c. 860.

Chapter 34. Certification of Agricultural Products.

§ 3.2-3400. Request of parties financially interested; fees to be deposited in Fund.

A. In order to promote, protect, further, and develop the agricultural interests of the Commonwealth, the Commissioner may, when requested by parties financially interested in a lot of any agricultural products, investigate and certify the quality, condition, grade, or other classification of such agricultural product, pursuant to regulations adopted by the Board, including prescribing payment of fees as the Commissioner deems reasonable for the services provided by employees or licensed agents of the Department.

B. There is hereby created in the state treasury a special nonreverting fund to be known as the Certification of Agricultural Products Trust Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys levied and collected pursuant to subsection A and § 3.2-4606 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 solely to carry out the provisions of this chapter.

Code 1950, §§ 3-28, 3-29; 1966, c. 702, §§ 3.1-28, 3.1-29; 2008, c. 860.

§ 3.2-3401. Licensing of agents.

The Commissioner may license as inspectors persons not in the employ of the Department. No person who is not an employee of the Department may act as a licensed inspector under this chapter unless samples from commodities graded or inspected by him are regularly graded or inspected by an employee of the Department, or of the U.S. Department of Agriculture.

Code 1950, § 3-30; 1966, c. 702, § 3.1-30; 2008, c. 860.

§ 3.2-3402. Certificates as evidence.

Certificates of inspection and reinspection issued under this chapter by authorized agents of the Department and those relating to the grade, classification, quality, or condition of agricultural products issued under authority of the Congress of the United States shall be accepted in any court of the Commonwealth as prima facie evidence of the true grade, classification, condition, or quality of such agricultural product at the time of its inspection.

Code 1950, § 3-31; 1966, c. 702, § 3.1-31; 2008, c. 860.

Chapter 35. Farmers Market System.

§ 3.2-3500. Development of farmers market system.

In overseeing the development of a farmers market system, the Board shall:

1. Identify farmers market needs throughout the Commonwealth;

2. Promote the orderly growth and development of farmers markets;

3. Promote public awareness of farmers markets;

4. Promote the coordination of Virginia's farmers market development with other segments of the Commonwealth's economy, such as tourism, horticultural production and marketing, fruit and vegetable production and marketing, retail trade, wholesale trade, intrastate marketing, interstate marketing, and new marketing ventures such as electronic marketing; and

5. Advise the Governor on the development of the system of state-owned farmers market facilities.

1986, c. 375, § 3.1-73.3; 1989, c. 413; 2001, cc. 17, 398; 2009, c. 860.

§ 3.2-3501. Commissioner to manage farmers market operations.

A. In order to establish, operate and maintain a system of state-owned farmers market facilities within the Commonwealth, the Commissioner may carry out the provisions of this chapter, including the power to:

1. Cooperate with various state agencies and other organizations contributing to the development of the farmers market system;

2. Develop and implement policy for the management of state-owned farmers market facilities, including:

a. Guidelines for fees to be charged at the markets;

b. Standards for evaluating market operations;

c. Criteria for the expansion of existing state-owned farmers market facilities and the establishment of new markets in the future;

d. Changes in management of markets; and

e. Guidelines for the award of contracts for market management.

3. Employ such personnel as necessary to operate the system of markets in accordance with the Virginia Personnel Act (§ 2.2-2900 et seq.);

4. Receive and dispense funds;

5. Develop and manage a program budget for the farmers market system;

6. Provide marketing and promotional services for the farmers market system;

7. Develop detailed technical plans for, acquire or build, and manage the farmers market system;

8. Conduct such studies as are necessary to ensure the success of the farmers market system;

9. Make contracts and agreements and execute other instruments necessary for the operation of the farmers market system;

10. Enter into agreements with and accept grants from any governmental agency in furtherance of this chapter;

11. Enter into joint ventures with cities, towns, counties or combinations thereof in developing wholesale, shipping point, and retail farmers markets; and

12. Rent or purchase land and facilities as deemed necessary to establish markets or to enhance farmers market development.

B. If a market in the network is operated pursuant to a contract between the Commissioner and the market operator, such contract shall require that the operator annually submit to the Commissioner a plan for, and a report on, the operation of the market. The plan shall describe the operator's goals for the coming year as to the acreage to be served by the market, the types of crops to be sold at the market, and the number of brokers, buyers, and producers to utilize the market. The report shall describe the extent to which the goals for the previous year were met.

1989, c. 413, § 3.1-73.5; 2000, c. 536; 2001, cc. 17, 398; 2005, c. 633; 2008, c. 860; 2017, c. 5.

§ 3.2-3502. Local retail farmers markets.

Any locality may establish, operate and maintain a local retail farmers market. The local retail farmers market may request to be part of the network of farmers markets within the Commonwealth or may be independent of such network. Nothing in this section shall invalidate the actions of any locality taken prior to enactment of this section.

2000, c. 15, § 3.1-73.5:1; 2008, c. 860.

Chapter 36. Fertilizer.

§ 3.2-3600. Definitions.

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

"AAPFCO" means the Association of American Plant Food Control Officials.

"AOAC International" means the Association of Analytical Communities, formerly the Association of Official Analytical Chemists.

"Brand" means a term, design, trademark or product name under which a regulated product is distributed.

"Bulk" means in nonpackaged form.

"Bulk fertilizer" means a fertilizer distributed in a nonpackaged form.

"Commercial fertilizer" means a fertilizer distributed for farm use, or for any other use, other than any specialty fertilizer use.

"Compost" means a biologically stable material derived from the composting process.

"Composting" means the biological decomposition of organic matter through a process that inhibits pathogens, viable weed seeds, and odors, accomplished by mixing and piling so as to promote aerobic decay, anaerobic decay, or both aerobic and anaerobic decay.

"Contractor-applicator" means any person required to hold a permit to apply any regulated product pursuant to § 3.2-3608.

"Custom medium" means a horticultural growing medium that is prepared to the exact specifications of the person who will be planting in the medium and delivered to that person without intermediate or further distribution.

"Deficiency" means the amount of nutrient found by analysis to be less than that guaranteed, which may result from a lack of nutrient ingredients, or from lack of uniformity.

"Distribute" means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter, the chemical or physical characteristics of a regulated product, or to offer for sale, sell, barter, warehouse or otherwise supply regulated product in the Commonwealth.

"Distributor" means any person who distributes.

"Fertilizer" means any substance containing one or more recognized plant nutrients, which is used for its plant nutrient content, and which is designed for use, or claimed to have value, in promoting plant growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone, and other products exempted by regulation.

"Fertilizer material" means a fertilizer that: (i) contains important quantities of no more than one of the primary plant nutrients: nitrogen (N), phosphate (P205) and potash (K20); (ii) has 85 percent or more of its plant nutrient content present in the form of a single chemical compound; or (iii) is derived from a plant or animal residue, a by-product, or a natural material deposit that has been processed or conditioned in such a way that its content of plant nutrients has not been materially changed, except by purification and concentration.

"Grade" means the percentage of total nitrogen (N), available phosphate (P205) and soluble potash (K20), stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis, except that fertilizer materials, specialty fertilizers, bone meal, manures and similar raw materials may be guaranteed in fractional units.

"Guaranteed analysis" means the minimum percentage of plant nutrients claimed as required by this chapter to be displayed on the label of a regulated product.

"Guarantor" means the person whose name appears on the label of a regulated product.

"Horticultural growing medium" means any substance or mixture of substances that is promoted as or is intended to function as an artificial soil for the managed growth of horticultural crops.

"Industrial co-product" means any industrial waste or byproduct, including exceptional quality biosolids and waste treatment residuals, that can be beneficially recycled for its plant nutrient content or soil amendment characteristics, that meets the definition of fertilizer, soil amendment, or horticultural growing medium.

"Investigational allowance" means an allowance for variations, inherent in the taking, preparation, and analysis of an official sample.

"Label" means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a regulated product, including an invoice.

"Labeling" means all written, printed, or graphic matter, upon or accompanying any regulated product, including invoices, advertisements, brochures, posters, television and radio announcements, and internet content used in promoting the sale of the regulated product.

"Lawn fertilizer" means any fertilizer intended for nonagricultural use on newly established turf areas from sod or seed during the first growing season, turf areas being repaired or renovated, and turf areas where soil tests performed within the past three years indicate a nutrient deficiency.

"Lawn maintenance fertilizer" means any fertilizer intended for the nonagricultural routine maintenance of turf.

"Licensee" means the person who receives a license to distribute any regulated product under the provisions of this chapter.

"Lot" means an identifiable quantity of produced material that can be sampled officially according to AOAC International procedures, up to and including a freight car load or 50 tons maximum, or that amount contained in a single vehicle, or that amount delivered under a single invoice.

"Manipulated manure" means animal or vegetable manure that is ground, pelletized, mechanically dried, packaged, supplemented with plant nutrients or other substances other than phosphorus, or otherwise treated in a manner to assist with the sale or distribution of the manure as a fertilizer or soil or plant additive.

"Manufacturer" means any person who manufactures, produces, compounds, mixes, blends, or in any way alters the chemical or physical characteristics of any regulated product.

"Mixed fertilizer" means a fertilizer containing any combination or mixture of fertilizer materials.

"Official analysis" means the analysis of an official sample, made by the Commissioner.

"Official sample" means the sample of regulated product taken by the Commissioner.

"Percent" or "percentage" means the percentage by weight.

"Primary nutrient" includes total nitrogen (N), available phosphate (P205), and soluble potash (K20).

"Quantity statement" means the net weight (mass), net volume (liquid or dry), count or other form of measurement of a commodity.

"Registrant" means the person who registers regulated products, under the provisions of this chapter.

"Regulated product" means any product governed by this chapter, including any fertilizer, specialty fertilizer, soil amendment, and horticultural growing medium.

"Soil amendment" means any substance or mixture of substances intended to improve the physical, chemical, biochemical, biological, or other characteristics of the soil. The following are exempt from the definition of "soil amendment": fertilizer, unmanipulated or composted animal and vegetable manures, horticultural growing media, agricultural liming materials, unmixed mulch and unmixed peat.

"Specialty fertilizer" means a fertilizer distributed for nonfarm use, including use on home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses and nurseries.

"Stop sale, use, removal, or seizure order" means an order that prohibits the distributor from selling, relocating, using, or disposing of a lot of regulated product, or portion thereof, in any manner, until the Commissioner or the court gives written permission to sell, relocate, use or dispose of the lot of regulated product or portion thereof.

"Ton" means a unit of 2000 pounds avoirdupois weight.

"Turf" means nonagricultural land that is planted as closely mowed, managed grass and includes golf courses, parks, cemeteries, publicly owned lands, and residential, commercial, or industrial property.

"Unmanipulated manure" means substances composed of the excreta of domestic animals, or domestic fowls, that has not been processed or conditioned in any manner including processing or conditioning by drying, grinding, pelleting, shredding, addition of plant food, mixing artificially with any material or materials (other than those that have been used for bedding, sanitary or feeding purposes for such animals or fowls), or by any other means.

1994, c. 740, § 3.1-106.2; 2002, c. 473; 2008, c. 860; 2011, cc. 341, 353, 552, 564.

§ 3.2-3601. Authority of the Board and the Commissioner to adopt regulations.

A. The Board may adopt such regulations as are necessary to carry out the provisions of this chapter. Such regulations may include investigational allowances, definitions, records, and manufacturing practices, and the distribution and storage of regulated product prior to final sale.

B. The Commissioner may adopt as a regulation:

1. The Official Fertilizer Terms, Definitions, and Standards adopted by AAPFCO;

2. The methods of sampling and analysis for regulated products adopted by AOAC International; and

3. Any method of sampling and analysis for a regulated product developed by the Department or adopted by agencies of the federal government, agencies of other states, the Division of Consolidated Laboratories or other commercial laboratories accredited by the Food and Drug Administration, or the U.S. Department of Agriculture.

C. Such regulations adopted by the Commissioner shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. The regulation shall contain a preamble stating that the Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision of such regulation. The Commissioner shall provide notice by first-class mail of regulations adopted by him pursuant to this section to all manufacturers of currently registered regulated product.

D. The Board, after giving notice in the Virginia Register of Regulations, may reconsider and revise the regulation adopted by the Commissioner. Such revised regulation shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations.

E. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption, reconsideration, or revision of any regulation adopted pursuant to subsections B, C, and D of this section.

1994, c. 740, § 3.1-106.4; 1995, c. 104; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3602. Local government regulation of fertilizer.

No locality shall regulate the registration, packaging, labeling, sale, use, application, storage or distribution of fertilizers except by ordinance as provided for in the requirements of the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.), the Erosion and Sediment Control Law (§ 62.1-44.15:51 et seq.), the Stormwater Management Act (§ 62.1-44.15:24 et seq.) or other nonpoint source regulations adopted by the Department of Environmental Quality or the State Water Control Board. The provisions of this section shall not preempt the adoption, amendment, or enforcement of the Statewide Fire Prevention Code pursuant to § 27-97 and the Uniform Statewide Building Code pursuant to § 36-98.

2007, c. 563, § 3.1-106.4:1; 2008, c. 860; 2011, cc. 341, 353; 2013, cc. 756, 793.

§ 3.2-3602.1. Board authorized to adopt regulations for the application of regulated products to nonagricultural property; civil penalty.

A. The Board shall adopt regulations to certify the competence of (i) contractor-applicators, (ii) licensees, and (iii) employees, representatives, or agents of state agencies, localities, or other governmental entities who apply any regulated product to nonagricultural lands.

B. The regulations shall establish (i) training requirements; (ii) proper nutrient management practices in accordance with § 10.1-104.2, including soil analysis techniques, equipment calibration, and the timing of the application; and (iii) reporting requirements, including the submission of an annual report as specified by the Commissioner regarding the location of lawn fertilizer and lawn maintenance fertilizer applications. Contractor-applicators and licensees who apply lawn fertilizer and lawn maintenance fertilizer to more than a total of 100 acres of nonagricultural lands annually and employees, representatives, or agents of state agencies, localities, or other governmental entities who apply lawn fertilizer and lawn maintenance fertilizer to nonagricultural lands shall submit an annual report on or before February 1 and on a form prescribed by the Commissioner. The annual report shall include the total acreage or square footage by zip code of the land receiving lawn fertilizer and lawn maintenance fertilizer in the preceding calendar year. The Department shall provide for optional reporting by electronic methods. The Department shall make publicly available every year the total acreage or square footage by zip code. Any personal information collected pursuant to this section shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except that the Commissioner may release information that has been transformed into a statistical or aggregate form that does not allow identification of the persons who supplied, or are the subject of, particular information.

C. The Board may impose a civil penalty of up to $250 on any contractor-applicator or licensee who fails to comply with the regulations. The amount of the civil penalty shall be paid into the special fund established in § 3.2-3617.

D. The Board shall form a technical advisory committee of stakeholders. The Board shall consult with the technical advisory committee of stakeholders and the Department of Conservation and Recreation in the development of the regulations.

E. Any person who is subject to regulation and who applies any regulated product to nonagricultural lands shall comply with the regulations within 12 months of the effective date of the regulations.

F. Contractor-applicators and licensees in compliance with regulations adopted by the Board pursuant to this section shall not be subject to local ordinances governing the use or application of lawn fertilizer and lawn maintenance fertilizer.

2008, c. 686, § 3.1-106.4:2; 2011, cc. 341, 353, 552, 564.

§ 3.2-3603. Publications.

The Commissioner may publish in such forms and with such frequency as he may deem proper: (i) information concerning the distribution of fertilizers; and (ii) results of analysis based on official samples of fertilizer distributed within the Commonwealth, as compared with analysis guaranteed under §§ 3.2-3600 and 3.2-3611; and commercial value of nutrients as determined under § 3.2-3614.

1994, c. 740, § 3.1-106.19; 2008, c. 860.

§ 3.2-3604. Exchanges between manufacturers.

Nothing in this chapter shall be construed to restrict or avoid sales or exchanges of regulated product between importers, manufacturers, or manipulators who mix fertilizer materials for sale, or to prevent the free and unrestricted shipments of regulated product to manufacturers or manipulators who have registered their brands, and are licensed, as required by provisions of this chapter.

1994, c. 740, § 3.1-106.20; 2008, c. 860.

§ 3.2-3605. License and registration year; permit year.

A. The license year for all distributors, the registration year for any regulated product, and the tonnage reporting year is July 1 through June 30 of the following year. Each license or registration shall expire on June 30 of the year for which it is issued, provided that the license or registration shall be valid through July 31 of the next ensuing license or registration year or until the issuance of the renewal license or registration, whichever event occurs first, if the holder has filed a properly completed renewal application with the Commissioner on or before June 30 of the year for which the current license or registration was issued.

B. The permit year for all contractor-applicators is April 1 through March 31 of the following year. Each permit shall expire on March 31 of the permit year for which it is issued, provided that the permit shall be valid through March 31 of the next ensuing permit year or until the issuance of the renewal permit, whichever event occurs first, if the holder has filed a properly completed renewal application with the Commissioner on or before March 31 of the permit year for which the current permit was issued.

1994, c. 740, § 3.1-106.6; 1995, c. 104; 2002, c. 473; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3606. Distributor required to obtain license; fee.

A. It is unlawful for any person whose name appears upon the label of any regulated product as distributor to distribute a regulated product without first obtaining a license to distribute the regulated product in the Commonwealth. The person who distributes the regulated product shall file an application with the Commissioner on a form furnished by the Commissioner, and pay to the Commissioner a license fee of $50.

B. Any person who distributes a regulated product shall obtain a license prior to distributing any regulated product for each manufacturing location that he operates and that distributes any regulated product within the Commonwealth. The person who distributes a regulated product shall apply for a license on a form furnished by the Commissioner, and pay to the Commissioner a license fee of $50 for each manufacturing location that distributes in the Commonwealth.

C. The license application shall include the name and address of the applicant and the name and address of the applicant's distribution points in the Commonwealth.

D. The licensee shall place the name and address shown on the license on:

1. The labels of any regulated product, and pertinent invoices thereof, distributed by the licensee in the Commonwealth; and

2. All storage facilities for any regulated product distributed by the licensee in the Commonwealth.

E. The licensee shall inform the Commissioner in writing of additional distribution points established during the period of the license.

F. Any new applicant who fails to obtain a license within 15 working days of notification of the requirement to obtain a license, or any licensee who fails to comply with the license renewal requirements, shall pay a $35 late fee to the Commissioner in addition to the license fee.

1994, c. 740, § 3.1-106.6; 1995, c. 104; 2002, c. 473; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3607. Product registration and label requirements; exemptions.

A. In addition to licensing requirements:

1. Any person who is the guarantor of and who distributes in the Commonwealth any specialty fertilizer shall: (i) apply for registration for such specialty fertilizer with the Commissioner on forms furnished by the Commissioner; (ii) pay to the Commissioner by July 1 of each registration year a registration fee of $50 for each grade under a given brand prior to distributing the fertilizer in the Commonwealth; and (iii) provide labels for each grade under a given brand with the application.

2. Any person who is the guarantor and who distributes in the Commonwealth a soil amendment or horticultural growing medium shall: (i) apply for registration for such soil amendment or horticultural growing medium with the Commissioner on forms furnished by the Commissioner; (ii) pay to the Commissioner by July 1 of each registration year a registration fee of $100 for each product name or brand of soil amendment or horticultural growing medium prior to distributing the product in the Commonwealth; and (iii) provide labels for each product name or brand with the application.

B. The Commissioner shall furnish a certificate of registration to the applicant after approval of the registration.

C. Any person applying for registration of a specialty fertilizer, soil amendment or horticultural growing medium shall include with the application the following information:

1. For specialty fertilizer, the grade under a given brand; for soil amendments or horticultural growing media, the product name or brand;

2. The guaranteed analysis;

3. The name and address of the registrant; and

4. The quantity statement.

D. The Commissioner may require verification of any labeling claims for and any composition of any regulated product.

E. Custom-media and horticultural growing media planted with live plant material are exempt from labeling and registration requirements and inspection fees.

F. Beginning December 31, 2013, no lawn maintenance fertilizer containing more than zero percent phosphorus or other compounds containing phosphorus, such as phosphate, shall be registered with the Commissioner or offered for sale, distribution, or use in the Commonwealth. This prohibition does not include lawn fertilizer, manipulated manure, yard waste compost, products derived from sewage sludge, soils containing fertilizer, fertilizer products intended primarily for gardening, tree, shrub, and indoor plant application, including nurseries, or reclaimed water. The provisions of this section shall not restrict the continued sale by retailers of any prohibited fertilizer from any existing inventories in stock on December 31, 2013.

G. Beginning July 1, 2014, only lawn maintenance fertilizer that, when applied in accordance with its directions for use, results in the application of nitrogen at rates that are consistent with the nitrogen application rates recommended for turfgrass in the Virginia Nutrient Management Standards and Criteria shall be registered with the Commissioner or offered for sale, distribution, or use in the Commonwealth. The provisions of this subsection shall not restrict the continued sale by retailers of any prohibited fertilizer from existing inventories in stock on July 1, 2014.

H. The Commissioner shall give the guarantor or distributor of any unregistered regulated product in commerce in the Commonwealth a grace period of 15 working days from issuance of notification within which to register the regulated product. Any person required to register any regulated product who fails to register the regulated product within the grace period or fails to comply with registration renewal requirements shall pay to the Commissioner a $50 late fee in addition to the registration fee. The Commissioner may issue a stop sale, use, removal or seizure order upon any regulated product until the registration is issued.

1994, c. 740, § 3.1-106.6; 1995, c. 104; 2002, c. 473; 2008, c. 860; 2011, cc. 341, 353, 552, 564; 2012, c. 796.

§ 3.2-3607.1. Consumer education.

A. The Department, in consultation with representatives of the fertilizer industry, fertilizer retailers, and statewide turf and lawn care organizations, and other interested parties, may develop consumer information and recommended best practices for the application of lawn fertilizer.

B. The Department shall provide a public listing of contractor-applicators who apply fertilizer on nonagricultural lands and have met the training requirements of § 3.2-3602.1. The Department shall encourage consumers to consult the listing when hiring a lawn care professional.

2011, cc. 341, 353.

§ 3.2-3607.2. Sale of deicing agents.

Beginning December 31, 2013, it is unlawful for any person to offer for sale any deicing agent containing urea or other forms of nitrogen or phosphorus intended for application to parking lots, roadways, and sidewalks or other paved surfaces in the Commonwealth. The provisions of this section shall not (i) restrict the continued sale by retailers of any deicing agent from any existing inventories in stock on December 31, 2013, or (ii) prohibit the offer for sale or sale of any deicing agents containing urea to any municipal corporation or political subdivision for the purpose of applying such deicing agents pursuant to subsection B of § 15.2-1123.

2011, cc. 341, 353; 2013, c. 758.

§ 3.2-3608. Contractor-applicator permit.

A. It is unlawful for any person, other than a licensee or an agent of a licensee, to apply any regulated product for profit without first obtaining a permit. In order to obtain a permit the person shall complete an application form furnished by the Commissioner and pay the $50 annual permit fee required to be a contractor-applicator. An employee or agent of a contractor-applicator who holds a valid permit is not required to obtain a permit.

B. Any person who engages in business as a contractor-applicator for a period of at least 30 days, and who has failed to obtain a permit within 15 working days of notification of the requirement to obtain a permit shall pay a $35 late fee to the Commissioner, in addition to the permit fee. Any permit holder who fails to comply with permit renewal requirements shall pay a $35 late fee to the Commissioner in addition to the permit fee.

C. An annual permit shall be required for each location or outlet that applies any regulated product.

D. The contractor-applicator shall guarantee the consumer that the contractor-applicator and the contractor-applicator's employees or agents applying any regulated product shall comply with all provisions of this chapter and with regulations adopted by the Board, which shall include an assurance of the delivery of the grade of fertilizer as described on the consumer's invoice.

1994, c. 740, § 3.1-106.6; 1995, c. 104; 2002, c. 473; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3609. Reporting year; inspection fees; distribution to nonlicensees.

A. The reporting year for regulated products shall be July 1 through June 30 of the following year.

B. Any person who distributes any regulated product to a non-licensed person:

1. Shall file the tonnage statement with the Commissioner and pay to the Commissioner the inspection fee by August 1; or

2. Shall not be required to file the tonnage statement or pay the inspection fee, if: (i) another person agrees in a written statement, filed with the Commissioner, to file the tonnage statement and to pay to the Commissioner the inspection fee by August 1; and (ii) he files with the Commissioner by August 1 on a form furnished by the Commissioner a purchasing report stating the number of tons of regulated product purchased by the person during the reporting year and from whom the regulated product was purchased.

C. Any person who distributes any regulated product in Virginia to a nonlicensee shall pay to the Commissioner an inspection fee of 25 cents ($0.25) per ton of regulated product or $35, whichever is greater, per tonnage reporting year.

D. Any person who distributes any regulated product to a nonlicensee shall pay to the Commissioner a late fee, amounting to 10 percent of the inspection fee due, or $50, whichever is greater, in addition to the amount of the inspection fee due, if the tonnage statement is not filed, is misstated, or if the payment of inspection fees is not made within 15 working days of the specified filing date.

1994, c. 740, § 3.1-106.8; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3610. Statistical reports.

A. For commercial fertilizer:

1. Any person distributing commercial fertilizer to a nonlicensee shall furnish the Commissioner an annual statistical report showing:

a. The county or city of the nonlicensee consignee;

b. The amounts (expressed in tons, or decimal portions) of each grade of fertilizer; and

c. The form in which the person distributed the fertilizer (e.g., in bags, bulk, or in liquid form).

2. This information shall be submitted in the following form and shall specify shipments made during the preceding year:

a. A statistical summary report on a form prescribed by the Commissioner, on or before August 1; or

b. A statistical summary report by electronic transfer, utilizing the Uniform Fertilizer Tonnage Reporting System. Prior to using the electronic transfer method, the person responsible for submitting the annual tonnage report shall make arrangements with the Commissioner for the Commissioner's receipt of the report by such method.

3. If the annual statistical report is not filed within 15 working days of the specified filing date, a late fee of $35 shall be assessed against the licensee.

B. For all other regulated products:

1. The person distributing or selling such products to a nonlicensee shall furnish the Commissioner an annual report showing:

a. The county or city of the nonlicensee consignee; and

b. The amounts (expressed in tons, or decimal portions) of each grade under a given brand of product.

2. Any person listed in subdivision B 1 who fails to file this report by August 1 shall pay a late fee of $35 to the Commissioner.

1994, c. 740, § 3.1-106.9; 1995, c. 104; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3611. Labeling.

A. The distributor or guarantor of any regulated product distributed in the Commonwealth shall affix a label to the container or provide an invoice at the time of delivery for a bulk regulated product that states in clear, legible and conspicuous form, in the English language, the following information:

1. The quantity statement;

2. The grade under a given brand. The grade shall not be required when no primary nutrients are claimed;

3. The guaranteed analysis, which shall:

a. For fertilizers, conform to the requirements adopted by AAPFCO in its Official Publication in the Rules and Regulations-Fertilizer section of the Officially Adopted Documents, as amended, with the percentage of each plant nutrient stated as follows:

a(1)Total Nitrogen (N)......… %
b
Available Phosphate (P205)......… %
c
Soluble Potash (K20)......… %

(2) For unacidulated mineral phosphate materials and basic slag, bone, tankage, and other organic phosphate materials, the available phosphate (P205), or the degree of fineness, or both, may also be guaranteed;

(3) Guarantees for plant nutrients other than nitrogen (N), phosphate (P205), and potash (K20) shall be expressed in the form of the element. A statement of the sources of nutrients including oxides, salt, and chelates, may be required on the application for registration of specialty fertilizers, and may be included as a parenthetical statement on the label. Degree of acidity or alkalinity (pH), beneficial substances, or compounds determinable by laboratory methods also may be guaranteed by permission of the Commissioner and with the advice of the Director of the Virginia Agricultural Experiment Station. When any degree of acidity or alkalinity (pH), beneficial substances, or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and regulations prescribed by the Board;

b. For soil amendments, conform to the requirements adopted by AAPFCO in its Official Publication in the Labeling section of the Uniform Soil Amendment Bill of the Officially Adopted Documents, as amended;

c. For horticultural growing media, include a list of ingredients and other guarantees as required by regulation and a statement of added fertilizers, if any;

d. When compost derived from sewage sludge, hazardous materials, unrendered animals or poultry or their parts, or other source material specified in regulations established by the Board is used as an ingredient, identify the source material of the compost;

e. When an industrial co-product is used as an ingredient, identify the source material and percentage or other acceptable unit; and

f. Include a list of such other ingredients and guarantees as may be required by the Board through regulation.

4. The name and address of the registrant or licensee; and

5. Directions for use and warning statements in accordance with the standards adopted by AAPFCO in its Officially Adopted Documents of the Official Publication, as amended.

B. A commercial fertilizer that is formulated according to specifications provided by a consumer prior to mixing shall be labeled to show: (i) the quantity statement; (ii) the guaranteed analysis; and (iii) the name and address of the distributor or the licensee.

C. [Repealed.]

D. Beginning December 31, 2013, lawn fertilizer and lawn maintenance fertilizer shall be labeled as follows:

"DO NOT APPLY NEAR WATER, STORM DRAINS, OR DRAINAGE DITCHES. DO NOT APPLY IF HEAVY RAIN IS EXPECTED. APPLY THIS PRODUCT ONLY TO YOUR LAWN/GARDEN, AND SWEEP ANY PRODUCT THAT LANDS ON THE DRIVEWAY, SIDEWALK, OR STREET, BACK ONTO YOUR LAWN/GARDEN."

1994, c. 740, § 3.1-106.5; 1995, c. 104; 2008, c. 860; 2011, cc. 341, 353, 552, 564.

§ 3.2-3612. Misbranding.

A. It is unlawful to distribute misbranded regulated product. A regulated product shall be deemed to be misbranded if:

1. It has a label that is false or misleading in any particular;

2. It is distributed under the name of another product;

3. It is not labeled as specified in § 3.2-3611, and in accordance with regulations adopted pursuant to this chapter; or

4. It purports to be, or is represented as, a fertilizer, or is represented as containing a plant nutrient or fertilizer, unless such plant nutrient or fertilizer conforms to the definition of identity, if any, as prescribed by regulation of the Board.

B. The guarantor of any regulated product found to be misbranded shall pay to the consumer an assessment equal to 10 percent of the retail value of the regulated product sold to the consumer and found to be in violation of subsection A not to exceed $5,000 per occurrence. The assessment for misbranding shall apply only to the retail sale of any regulated product made from a lot or a portion thereof after the Commissioner has inspected the lot or a portion thereof. The assessment for misbranding shall be in addition to any assessment for plant food deficiency.

1994, c. 740, § 3.1-106.10; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3613. Adulteration.

A. It is unlawful to distribute an adulterated regulated product. A regulated product shall be deemed to be adulterated if:

1. It contains any deleterious or harmful ingredient, in sufficient amount to render it injurious to beneficial plant life, when applied in accordance with directions for use on the label;

2. It does not contain an adequate warning statement, or directions for use, on the label sufficient to protect plant life;

3. It has a composition that falls below or differs from that which it is purported to possess by its labeling; or

4. It contains unwanted crop seed, or viable prohibited or restricted noxious weed seeds in amounts exceeding the limits specified in the regulations of the Board.

B. The guarantor of any regulated product found to be adulterated shall pay to the consumer an assessment equal to 10 percent of the retail value of the regulated product sold to the consumer and found to be in violation of subsection A not to exceed $5,000 per occurrence. The assessment for adulteration shall apply only to the retail sale of any regulated product made from a lot or a portion thereof after the Commissioner has inspected the lot or a portion thereof. The assessment for adulteration shall be in addition to any assessment for plant food deficiency.

1994, c. 740, § 3.1-106.11; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3614. Commercial value.

For the purpose of determining the commercial value to be applied in making assessments for variance from guarantee, the Commissioner shall determine the values per unit of total nitrogen (N), available phosphate (P205), soluble potash (K20), and micronutrients in fertilizers in the Commonwealth.

1994, c. 740, § 3.1-106.12; 2008, c. 860.

§ 3.2-3615. Plant food deficiency.

A. The Commissioner shall calculate assessments for a deficiency of: (i) total nitrogen (N); (ii) available phosphate (P205); or (iii) soluble potash (K20). If the analysis shows that the fertilizer is deficient: (a) in one or more of the guaranteed primary plant nutrients, beyond the investigational allowances and compensations, as established by regulation; or (b) that the overall index value of the fertilizer is below the level established by regulation, then an assessment for variance from guarantee of two times the value of such deficiency, not to exceed $5,000 per occurrence, shall be paid to the consumer by the guarantor. When the fertilizer is subject to an assessment under both clauses (a) and (b), the Commissioner shall calculate assessments under both such clauses and the guarantor shall pay to the consumer the larger of the two assessments.

B. If, upon evidence satisfactory to the Commissioner, a person is found to have: (i) altered the content of any fertilizer shipped to him by a licensee; or (ii) mixed, or commingled, fertilizer from two or more distributors, such that the result of either alteration changes the analysis of the fertilizer as originally guaranteed, then the person who has altered, mixed or commingled shall: (a) obtain a license and register the altered or mixed product; (b) be held liable for all assessments; and (c) be subject to other provisions of this chapter including seizure, condemnation, and stop sale.

C. A deficiency in an official sample of mixed fertilizer, resulting from nonuniformity, is not distinguishable from a deficiency due to actual plant nutrient shortage, and any deficiency due to nonuniformity shall be subject to the provisions of this chapter.

1994, c. 740, § 3.1-106.13; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3616. Assessments for variance from label guarantees.

A. The guarantor shall pay to the consumer all assessments for misbranding, adulteration or plant food deficiency on the lot of regulated product represented by the sample analyzed. The guarantor shall make payment to the consumer within 60 days after the date of notice from the Commissioner to the guarantor. The guarantor shall obtain a receipt documenting the payment of such assessment, which shall be forwarded to the Commissioner within the 60-day period during which payment to the consumer is made.

B. If the guarantor cannot locate the consumer within 60 days; the amount of the assessment shall be paid to the Commissioner, who shall deposit it in the state treasury, and report to the State Comptroller, who shall credit the amount to a special fund for the sale of substandard fertilizer. The Commissioner shall pay to the consumer of a lot of regulated product on which the assessment was made an amount equal to the assessment from the Sale of Substandard Fertilizer Fund if the consumer can be located in 90 days. The State Comptroller shall transfer any balance remaining in the fund for a period of 90 days to the Feed, Lime, Fertilizer, and Animal Remedies Fund as specified by § 3.2-3617. Any person required to pay an assessment who fails to pay the assessment within the time specified shall pay to the Commissioner a late fee of 10 percent of the assessment, or $50, whichever is greater, in addition to the assessment. The Commissioner may cancel the license of such person who fails to pay the assessment.

1994, c. 740, § 3.1-106.14; 2008, c. 860.

§ 3.2-3617. Fund established; disposition of fees, assessments, and penalties.

A. There is hereby created in the state treasury a special nonreverting fund to be known as the Feed, Lime, Fertilizer, and Animal Remedies Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. Except as otherwise specified, moneys levied and collected pursuant to this chapter and pursuant to Chapters 37, 48, and 49 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 solely for the purposes set forth in this chapter.

B. All fees, assessments and penalties, including funds transferred from the Fund for the Sale of Substandard Fertilizer pursuant to § 3.2-3616, received by the Commissioner under this chapter shall be paid into the Feed, Lime, Fertilizer, and Animal Remedies Fund, to the credit of the Department, to be used in carrying out the purpose and provisions of this chapter, to include inspection, sampling and other expenses; except that the Commissioner shall deposit, to the credit of the Virginia Agricultural Foundation Fund established pursuant to § 3.2-2905, five cents ($0.05) of the inspection fee per ton of regulated product.

1994, c. 740, § 3.1-106.22; 2008, c. 860.

§ 3.2-3618. Inspection, sampling and analysis; penalty.

A. The Commissioner shall: (i) sample, inspect, analyze, and test any regulated product distributed within the Commonwealth; (ii) inspect storage facilities where such regulated product is stored; (iii) monitor and, where the Commissioner deems it necessary, regulate the manufacturing procedures of such regulated products as affected by best management practices for manufacturing containment and considerations of environmental factors; and (iv) allocate adequate personnel to the major farm fertilizer consuming areas of the state to carry out his duties under this chapter as such duties relate to insuring the quality, analysis, and quantity of fertilizer sold and distributed in the state.

The Commissioner is authorized to enter during operating hours the premises or carriers of any person subject to regulation under this chapter, in order to have access to: (i) the regulated product, storage facilities and manufacturing practices; and (ii) records relating to the distribution and storage of regulated product.

B. Any person who shall hinder or obstruct in any way the Commissioner in the performance of his official duties is guilty of a Class 3 misdemeanor.

C. The Commissioner shall use the methods of sampling and analysis adopted by the Commissioner or the Board.

D. The Commissioner, in determining for administrative purposes whether any fertilizer is deficient in plant food, shall be guided solely by the official sample. The Commissioner shall obtain and analyze samples as specified in subsection C of this section.

E. The Commissioner may distribute information regarding official analysis of fertilizers. The Commissioner shall retain official samples establishing an assessment for variance from guarantee for a minimum of 90 days from issuance of a deficiency report.

1994, c. 740, § 3.1-106.7; 1995, c. 104; 2008, c. 860.

§ 3.2-3619. Stop sale, use, removal, or seizure orders; penalty.

A. The Commissioner may issue and enforce a written or printed stop sale, use, removal, or seizure order to the owner or custodian of any lot of regulated product distributed in violation of this chapter. The Commissioner shall release for distribution the regulated product held under a stop sale, use, removal, or seizure order when the requirements of this chapter have been met. If the Commissioner determines that the regulated product cannot be brought into compliance with the chapter, the Commissioner shall release the regulated product to be remanufactured, returned to the manufacturer, or destroyed.

B. The Board may impose a civil penalty of up to $250 on any person violating a written or printed stop sale, use, removal, or seizure order.

1994, c. 740, § 3.1-106.15; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3620. Seizure and condemnation.

The Commissioner may seize any lot of regulated product not in compliance with this chapter. The Commissioner may make application for seizure to an appropriate court in the city or county where such regulated product is located. In the event that the court finds such regulated product to be in violation of this chapter, and orders the condemnation of such regulated product, the owner of the regulated product shall dispose of the seized regulated product in any manner that, in the opinion of the Commissioner, is consistent with the quality of the regulated product, and that complies with the laws of the Commonwealth. In no instance shall the court order the disposition of such regulated product without first giving the claimant an opportunity to apply to the court for release of the regulated product, or for permission to process or relabel the regulated product, to bring it into compliance with this chapter.

1994, c. 740, § 3.1-106.16; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3621. Cancellation of registration, permit, or license.

A. The Commissioner may: (i) cancel the license or permit of any person; (ii) cancel the registration of any brand of regulated product; or (iii) refuse to register any brand of regulated product, or issue any license. The Commissioner shall cancel or refuse a license or registration upon satisfactory evidence that the registrant or licensee, has used fraudulent or deceptive practices in the evasion, or attempted evasion, of this chapter or any regulations adopted hereunder.

B. In addition, the Commissioner may cancel the license, permit or registration of any person who willfully fails to comply with this chapter by:

1. Failing to file the tonnage report;

2. Falsifying information;

3. Making an inaccurate statement of tonnage distributed in the Commonwealth during any reporting year;

4. Making an inaccurate listing of regulated products for registration;

5. Failing to pay the license, permit, registration or inspection fee;

6. Failing to accurately report any of the information required to be submitted under this chapter;

7. Failing to keep records for a period of three years; or

8. Failing to allow inspection of records by the Commissioner.

1994, c. 740, §§ 3.1-106.8, 3.1-106.18; 2008, c. 860; 2011, cc. 552, 564.

§ 3.2-3622. Commissioner's actions; injunction.

A. Nothing in this chapter shall require the Commissioner to report for prosecution, or institute seizure proceedings, where the Commissioner considers the violations of the chapter to be minor. In such cases, the Commissioner may serve a suitable notice of warning in writing, when he believes that the public interest will be best served by so doing.

B. The Commissioner may apply for, and the court to grant, a temporary or permanent injunction restraining any person from violating, or continuing to violate, this chapter or any regulation adopted under this chapter, notwithstanding the existence of other remedies at law.

1994, c. 740, § 3.1-106.17; 2008, c. 860.

§ 3.2-3623. Repealed.

Repealed by Acts 2011, cc. 552 and 564, cl. 2.

§ 3.2-3624. Warning.

Nothing in this chapter shall be construed as requiring the Commissioner to report for the institution of proceedings under this chapter, minor violations of this chapter, whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

2011, cc. 552, 564.

§ 3.2-3625. Violations; civil penalties.

A. The Commissioner shall give notice of the violation to the registrant or the licensee responsible for the regulated product. The Commissioner may give notice to the distributor from whom the Commissioner sampled the regulated product.

B. To determine the amount of any civil penalty, the Commissioner shall give due consideration to (i) the history of previous violations, (ii) the seriousness of the violation, and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with the chapter after notification of the violation.

C. The Commissioner shall determine procedures for payment of uncontested civil penalties. The procedures shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

D. The person to whom a civil penalty is issued shall have 15 days to request an informal fact-finding conference, held pursuant to § 2.2-4019, to challenge the fact or amount of the civil penalty. If the civil penalty is upheld, the person against whom the civil penalty has been upheld shall have 15 days to pay the proposed penalty in full, or if the person wishes to contest either the amount of the penalty or the fact of the violation, forward the proposed amount to the Commissioner's office for placement in an interest-bearing trust account in the State Treasurer's office. If through administrative or judicial review of the proposed penalty, it is determined that no violation occurred, or that the amount of penalty should be reduced, the Commissioner shall within 30 days of that determination remit the appropriate amount to the person with interest accrued thereon.

E. Final orders of the Commissioner may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

F. Except as otherwise provided, any person convicted of violating any of the provisions of this chapter or the regulations adopted hereunder is guilty of a Class 3 misdemeanor.

2011, cc. 552, 564.

Chapter 37. Agriculture Liming Materials.

§ 3.2-3700. Definitions.

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

"Agricultural liming material" means any limestone with calcium and magnesium compounds that has the capacity, and whose intended purpose is, to neutralize soil acidity.

"Applicant" means the person who applies for, or requests, a license, or applies for registration of any liming material; or applies to become a contractor.

"Brand" means the term, designation, trademark, product name or other specific designation under which any liming material is offered for sale.

"Bulk" means materials in nonpackaged form.

"Calcium carbonate equivalent" means the acid neutralizing capacity of any liming material, expressed as weight percentage of calcium carbonate.

"Contractor" means any person required to hold a permit to sell any bulk liming material to the consumer pursuant to § 3.2-3704.

"Distributor" means any person who imports or consigns, manufactures, produces, compounds, mixes, or blends any liming material, or who offers for sale, sells, barters or otherwise supplies any liming material.

"Effective Neutralizing Value" or "ENV" means a relative value using the calcium oxide content, magnesium oxide content and fineness to express the effectiveness of an agricultural liming material in neutralizing soil acidity. This term is synonymous with Effective Neutralizing Power (ENP).

"Fineness" means the percentage by weight of the material that will pass through United States Standards sieves of specified sizes.

"Industrial co-product used to neutralize soil acid" means a waste or by-product of an industrial process that contains any compound not normally found in limestone that has the capacity, and whose intended purpose is, to neutralize soil acidity.

"Kind" means one of the two classes of liming material.

"Label" means any written or printed matter on, or attached to, the package, or on the delivery ticket that accompanies bulk shipments, of any liming material.

"Licensed" or "licensee" means the person issued a license to distribute any liming material in the Commonwealth.

"Limestone" means a material consisting essentially of calcium carbonate, or a combination of calcium carbonate and magnesium carbonate, capable of neutralizing soil acidity.

"Liming material" means any agricultural liming material and any industrial co-product used to neutralize soil acid.

"Manufacturer" means any person who manufactures, produces, compounds, mixes, blends, imports or consigns liming material, or who offers for sale, sells, barters or otherwise supplies liming material.

"Percent" or "percentage" means by weight.

"Quantity statement" means the net weight (mass), net volume (liquid or dry), count or other form of measurement of a commodity.

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

"Standard liming ton" means a ton of agricultural liming material with a calcium carbonate equivalent of 90 percent.

"Stop sale, use, removal or seizure order" means an order that prohibits the distributor from selling, relocating, using, or disposing of a lot of liming material, or portion thereof, in any manner, until the Commissioner or a court gives written permission to sell, relocate, use or dispose of the lot of liming material or portion thereof.

"Ton" means a unit of 2,000 pounds avoirdupois weight.

"Type" means the identification of the agricultural liming material as follows:

1. "Burnt" means any agricultural liming material with calcium and magnesium compounds capable of neutralizing soil acidity, and that consists essentially of calcium oxide, or a combination of calcium oxide and magnesium oxide.

2. "Calcitic" means any agricultural liming material in which 85 percent or more of the total neutralizing value, expressed as calcium carbonate equivalent, is derived from calcium.

3. "Dolomitic" means any agricultural liming material in which 15 percent or more of the total carbonate content is magnesium carbonate.

4. "Hydrated" means any agricultural liming material, made from burnt lime, that consists essentially of: (i) calcium hydroxide; (ii) a combination of calcium hydroxide, magnesium oxide and magnesium hydroxide; or (iii) a combination of calcium hydroxide, and either magnesium oxide or magnesium hydroxide.

5. "Marl" means a granular or loosely consolidated earthy agricultural liming material composed largely of calcium carbonate.

1994, c. 649, § 3.1-126.2:1; 2002, c. 473; 2008, c. 860.

§ 3.2-3701. Authority of Board and Commissioner to adopt regulations.

A. The Board may adopt such regulations as are necessary to carry out the provisions of this chapter. Such regulations may include to investigational allowances, definitions, records, manufacturing practices and the distribution and storage of liming material.

B. The Commissioner may adopt, as a regulation:

1. The Official Fertilizer Terms and Definitions adopted by the Association of American Plant Food Control Officials;

2. The methods of sampling and analysis for liming material adopted by the Association of Official Analytical Chemists; and

3. Any method of sampling and analysis for liming material developed by the Department or adopted by agencies of the federal government, agencies of other states, the Division of Consolidated Laboratory Services, or other commercial laboratories accredited by the Food and Drug Administration, U.S. Department of Agriculture or Association of Official Analytical Chemists.

C. Such regulations adopted by the Commissioner shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. The regulation shall contain a preamble stating that the Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision of such regulation.

D. The Board, after giving notice in the Virginia Register of Regulations, may reconsider and revise the regulation adopted by the Commissioner. Such revised regulation shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations.

E. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption, reconsideration or revision of any regulation adopted pursuant to subsections B, C, and D.

1994, c. 649, § 3.1-126.12:1; 2008, c. 860.

§ 3.2-3702. Registration; permitting of distributors.

A. Any distributor of agricultural liming material in the Commonwealth shall register each brand by July 1 for the registration year July 1 through June 30, before distributing any agricultural liming material in the Commonwealth. Each distributor shall submit an application for registration to the Commissioner on forms furnished or approved by the Commissioner and shall pay to the Commissioner a registration fee of $50 per brand of agricultural liming material per registration year. Upon approval by the Commissioner, the Commissioner shall furnish a copy of the registration to the applicant. Each registration shall expire on June 30 of the registration year for which the Commissioner issued the registration. Any registration shall be valid through July 31 of the next registration year or until issuance of the renewal registration, whichever occurs first, if the holder of the registration has filed a renewal application with the Commissioner on or before June 30 of the registration year for which the Commissioner issued the registration.

B. Any distributor of any brand of industrial co-product used to neutralize soil acid in the Commonwealth shall register each brand by July 1 of each year for the registration year of July 1 to June 30, before distributing any industrial co-product used to neutralize soil acid in the Commonwealth. Each distributor shall submit an application for registration to the Commissioner on forms furnished or approved by the Commissioner and shall pay to the Commissioner a registration fee of $100 per brand of industrial co-product used to neutralize soil acid per registration year. The Commissioner shall furnish a copy of the registration to the applicant. Each registration shall expire on June 30 of the registration year for which the Commissioner issued the registration. Every such registration shall be valid through July 31 of the next registration year or until issuance of the renewal registration, whichever occurs first, if the holder of the registration has filed a renewal application with the Commissioner on or before June 30 of the registration year for which the Commissioner issued the registration.

Any distributor making application to register any brand of industrial co-product used to neutralize soil acid shall submit to the Commissioner test data indicating the product's neutralizing value, and its safety to plants and animals.

C. If the Commissioner identifies any unregistered liming material in commerce in the Commonwealth during the registration year, the Commissioner shall grant a grace period of 15 working days from issuance of notification to the distributor of the liming material to register the liming material without penalty. Any distributor who fails to register each brand of liming material being distributed by him in the Commonwealth by the 15th day of the grace period, shall pay to the Commissioner a $50 late fee per brand of liming material in addition to the registration fee, as well as cause a stop sale, use, removal or seizure order to be issued upon said liming material until its registration is complete.

D. A distributor shall not be required to register any brand of liming material or liming material with added potash, if it has been duly registered under this chapter by another person, provided the label on the liming material the other person registered does not differ in any respect from the label on the liming material the distributor seeks to register.

1974, c. 647, § 3.1-126.4; 1994, c. 649; 2002, c. 473; 2008, c. 860.

§ 3.2-3703. Manufacturer required to obtain license; fee.

A. Any person who manufactures or whose name appears on the label of any liming material to be distributed in the Commonwealth shall by July 1 of each year, or prior to distribution of such liming material, obtain a license for the licensing year of July 1 to June 30. Each person shall make application on forms furnished or approved by the Commissioner and shall pay a license fee of $50 per licensing year per distributor. Each license shall expire on June 30 of the license year for which the Commissioner issued the license. Every such license shall be valid through July 31 of the next licensing year or until issuance of the renewal license, whichever occurs first, if the holder of the license filed a renewal application with the Commissioner on or before June 30 of the licensing year for which the Commissioner issued the license.

B. The Commissioner shall grant to any person who has failed to obtain a license required by subsection A, a grace period of 15 working days from issuance of notification to obtain a license without a penalty. Any person who fails to obtain a license by the 15th day of the grace period shall pay to the Commissioner a $50 late fee in addition to the license fee, as well as cause a stop sale, use, removal or seizure order to be issued on any liming material the person distributes until the person obtains the required license.

1974, c. 647, § 3.1-126.4; 1994, c. 649; 2002, c. 473; 2008, c. 860.

§ 3.2-3704. Contractor permit.

A. It is unlawful for any person, other than a registrant or licensee, to sell bulk liming material unless the person: (i) obtains a license by completing a contractor application form furnished or approved by the Commissioner and pays the $50 annual fee required to be a contractor; (ii) is an employee or agent of a contractor who holds a valid permit, in which case no permit is required and no fee is due from the employee or agent; or (iii) holds a valid permit to be a contractor-applicator pursuant to subsection A of § 3.2-3608, or is an employee or agent of person holding a valid permit to be a contractor-applicator pursuant to subsection A of § 3.2-3608, in which case no additional permit is required and no additional fee is due. Each permit to do business as a contractor shall expire on June 30 of the permitting year for which the Commissioner issued the permit. Every such permit shall be valid through July 31 of the next permitting year or until issuance of the renewal permit, whichever occurs first, if the holder of the permit has filed a renewal application with the Commissioner on or before June 30 of the permitting year for which the Commissioner issued the permit.

B. The Commissioner shall grant to a contractor who has failed to obtain a contractor's permit to do business during the permitting year a grace period of 15 working days, starting upon issuance of notification, to obtain the permit without the payment of a late fee. If the contractor fails to obtain a permit by the 15th day of the grace period, the contractor shall pay to the Commissioner a $50 late fee in addition to the permit fee, and the Commissioner shall cause a stop sale, use, removal or seizure order to be issued on any liming material the contractor sells until the contractor obtains the required permit.

C. The contractor shall guarantee the consumer that the contractor shall comply with all provisions of this chapter that apply to the sale and delivery of bulk liming material.

1974, c. 647, § 3.1-126.4; 1994, c. 649; 2002, c. 473; 2008, c. 860.

§ 3.2-3705. Distribution to nonlicensed person; report of tonnage; inspection fee; fee for late payment.

A. By August 1 of each year, each person who distributes liming material to a nonlicensed person shall submit on a form furnished or approved by the Commissioner a tonnage statement for the reporting year July 1 through June 30 of each year documenting the number of tons of each liming material sold by the distributor for use in each county or city in the Commonwealth. Each person distributing liming material in the Commonwealth to a nonlicensed person shall file a statement with the Commissioner and shall pay to the Commissioner an inspection fee of five cents ($0.05) per ton of liming material sold per reporting year. The minimum inspection fee shall be $35 per distributor per reporting year. If the distributor fails to submit the tonnage statement and pay the inspection fee by August 1 of each year, the Commissioner shall notify the distributor and grant a grace period of 15 working days from issuance of notification for the distributor to submit the tonnage statement and to pay the inspection fee without penalty. If the distributor fails to submit the tonnage statement and pay the inspection fee by the time the 15th day of the grace period has expired, the distributor shall pay to the Commissioner a late fee of 10 percent of the inspection fee, or $50, whichever is greater, per reporting year in addition to the inspection fee due.

B. Any distributor required to pay an inspection fee under subsection A shall use generally accepted accounting principles that indicate in the distributor's records the tonnage of liming materials sold by the distributor in the Commonwealth. The Commissioner may inspect the distributor's records that the distributor shall maintain for a period of three years.

C. Any person who distributes liming materials to a nonlicensed person:

1. Shall file the tonnage statement with the Commissioner and pay to the Commissioner the inspection fee; or

2. Shall not be required to file the tonnage statement or pay the inspection fee, if: (i) another person agrees in a written statement, filed with the Commissioner, to pay the inspection fee and file the tonnage statement by August 1 of each year; and (ii) he files with the Commissioner by August 1 of each year a purchasing report stating the number of tons the person purchased during the reporting year and from whom the liming material was purchased. The report shall be made on a form furnished or approved by the Commissioner.

D. The Commissioner may publish and distribute, to each liming material registrant and other interested persons, a composite report showing the tons of liming material sold in each county of the Commonwealth. This report shall in no way divulge the operation of any registrant or licensee.

1974, c. 647, § 3.1-126.5; 1976, c. 91; 1994, c. 649; 2008, c. 860.

§ 3.2-3706. Labeling.

A. Any liming material sold, offered or exposed for sale in the Commonwealth shall have affixed to the outside of each package in a conspicuous manner, a plainly printed, stamped or otherwise marked label, tag or statement, or in the case of bulk sales, a statement on the delivery slip, setting forth in the English language at least the following information:

1. The quantity statement of the liming material;

2. The brand or trade name of the liming material;

3. In the case of agricultural liming material, the identification of the type of the agricultural liming material as defined under § 3.2-3700, including the chemical analysis corresponding to the type definition;

4. The minimum percentage of available potash, if potash has been added to the liming material;

5. Calcium carbonate equivalent of the liming material as determined by procedures of the Association of Official Analytical Chemists in its most recent publication. Minimum calcium carbonate equivalents as prescribed by regulation;

6. The Effective Neutralizing Value of the liming material as calculated using the following formula:

(percent by weight passing 20 mesh sieves - percent by weight passing 60 mesh sieves) x 0.4 = (a)

(percent by weight passing 60 mesh sieves - percent by weight passing 100 mesh sieves) x 0.8 = (b)

(percent by weight passing 100 mesh sieves) x 1.0 = (c)

[(a+b+c) x Calcium Carbonate Equivalent (CCE)] divided by 100 = ENV;

7. The minimum percentage by weight passing through United States Standard sieves as prescribed by regulations; and

8. The name and principal office address of the manufacturer or distributor of the liming material.

B. For any fluid liming material or any packaged liming material-fertilizer mixture, the label shall also include the following information:

1. The kind of liming material used in the manufacture of the product;

2. The type of agricultural liming material used in the manufacture of the product, if applicable;

3. The guaranteed analysis of the final product; and

4. A statement setting forth the equivalency of the calcium carbonate equivalent of the fluid liming material or liming material-fertilizer mixture to the calcium carbonate equivalent of a standard liming ton.

C. For any bulk liming material-fertilizer mixture, except when the ingredients are billed separately, the label shall also include the following information:

1. The kind of liming material used in the manufacture of the product;

2. The type of agricultural liming material used in the manufacture of the product, if applicable;

3. The guaranteed analysis of the final product; and

4. A statement setting forth the equivalency of the calcium carbonate equivalent of the fluid liming material or liming material-fertilizer mixture to the calcium carbonate equivalent of a standard liming ton.

D. If the ingredients of the bulk liming material-fertilizer mixture are billed separately, the label shall also include the following information:

1. The kind of liming material used in the manufacture of the product;

2. The type of agricultural liming material used in the manufacture of the product, if applicable;

3. The dry weight of the liming material used in the manufacture of the product before mixing;

4. The guaranteed analysis of the liming material used in the manufacture of the product before mixing; and

5. The guaranteed analysis of the fertilizer used in the manufacture of the product before mixing.

E. For any industrial co-product used to neutralize soil acid, the product label shall include the statement "Industrial co-product used to neutralize soil acid." If the product is below the Virginia minimum standard requirements for an agricultural liming material as defined in the regulations, the statement "Substandard liming material" shall also be on the label.

F. All liming material shall be labeled as registered with the Commissioner.

G. No information or statement shall appear on any package, label, delivery slip or advertising matter that is false or misleading to the purchaser as to the quality, analysis, kind, type or composition of the liming material.

H. In the case of any liming material that has been adulterated subsequent to packaging, labeling or loading, and before delivery to the consumer, a plainly marked notice to that effect shall be affixed by the vendor to the package or delivery slip to identify the kind and degree of such adulteration.

I. The Board may require by regulation that the minimum percentage of calcium oxide, magnesium oxide, calcium carbonate, and magnesium carbonate shall be expressed in the following form:

Total Calcium (Ca)..…%

Total Magnesium (Mg)..…%

1974, c. 647, § 3.1-126.3; 1994, c. 649; 2008, c. 860.

§ 3.2-3707. Inspection, sampling, and analysis.

A. The Commissioner shall sample, inspect, analyze, and test liming material distributed within the Commonwealth to determine whether such liming material is in compliance with the provisions of this chapter. The Commissioner may enter upon any public or private premises during operating hours, or any carrier, in order to have access to liming material that is subject to the provisions of this chapter and regulations hereunder, and to the records relating to its distribution.

B. The Commissioner shall distribute the results of official analyses of liming material and portions of official samples of liming material as provided in regulations.

1974, c. 647, § 3.1-126.6; 1994, c. 649; 2008, c. 860.

§ 3.2-3708. Stop sale, use, removal or seizure order; review.

A. The Commissioner may issue and enforce a written or printed stop sale, use, removal or seizure order to the owner or custodian of any lot of liming material being offered or exposed for sale in violation of any of the provisions of this chapter. Such order may provide that such liming material be held at a designated place until the owner or custodian of such lot of liming material has complied with this chapter and the Commissioner has released the liming material in writing, or such violation has been otherwise legally disposed of by written authority.

B. The owner or custodian of such liming material shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

C. The provisions of this section shall not be construed: (i) as limiting the right of the Commissioner to proceed as authorized by other provisions of this chapter; or (ii) as limiting or prohibiting the operation of § 2.2-4028.

1974, c. 647, § 3.1-126.7; 1986, c. 615; 1994, c. 649; 2008, c. 860.

§ 3.2-3709. Assessments for violations of chapter.

A. Any person convicted of violating any provision of this chapter or the regulations adopted hereunder shall be subject to a penalty of not less than $25 nor more than $200 to be enforced by a summary proceeding in an appropriate court.

B. The Commissioner shall make an assessment for variance from guarantee in accordance with the regulations established by the Board, not to exceed $5,000 per occurrence, when any shipment of liming material that the Commissioner samples and upon analysis, fails to meet the guarantee for chemicals, neutralizing value, or screen size.

C. The person whose name appears on the label of the violative lot of liming material shall pay the assessment for variance from guarantee assessed by the Commissioner. The person assessed shall obtain a receipt signed by the purchaser for each payment, and promptly forward the receipt to the Commissioner. The person whose name appears on the label of the violative lot of liming material shall pay the assessment for variance from guarantee within 60 days from date of notice to the person assessed. If the purchaser cannot be found, or if the amount due any one purchaser is less than one dollar ($1.00), the person whose name appears on the label of the violative lot of liming material shall pay the assessment for variance from guaranty to the Commissioner, who shall deposit the same in the state treasury, and report to the State Comptroller, who shall credit the same to the Sale of Substandard Liming Material Fund, which fund is hereby created. The fund shall be a special nonreverting fund in the state treasury, to be disbursed as provided in subsection D.

D. Such funds as shall thereafter be found to be payable to the purchasers of lots of liming material on which the assessments for variance from guaranty were made shall be paid from the Sale of Substandard Liming Material Fund on order of the Commissioner. The State Comptroller shall transfer any balance remaining in such Fund for a period of 90 days to the credit of the fund specified in § 3.2-3710.

1974, c. 647, § 3.1-126.8; 1994, c. 649; 2008, c. 860.

§ 3.2-3710. Disposition of funds.

All fees, penalties, funds (including those transferred as specified in subsection D of § 3.2-3709 and except as provided in subsection C of § 3.2-3709), and assessments under this chapter that the Commissioner receives shall be paid into the Feed, Lime, Fertilizer, and Animal Remedies Fund, established in § 3.2-3617, to be used in carrying out the purpose and provisions of this chapter, to include inspection, sampling and other expenses; except that the Commissioner shall deposit, to the credit of the Virginia Agricultural Foundation Fund, five cents ($0.05) per ton of liming material sold per reporting year of the inspection fee.

1994, c. 649, § 3.1-126.12:3; 2008, c. 860.

§ 3.2-3711. Seizure of liming material when assessments not paid.

The Commissioner may seize any liming material belonging to any person whose name appears on the label of the violative lot of liming material, if such person fails to pay the assessment for variance from guarantee within 60 days after the Commissioner has given notice to such person.

1974, c. 649, § 3.1-126.9; 1994, c. 649; 2008, c. 860.

§ 3.2-3712. Appeal from Commissioner's actions.

Any person aggrieved by any action of the Commissioner under provisions of this chapter shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1974, c. 647, § 3.1-126.10; 1986, c. 615; 1994, c. 649; 2008, c. 860.

§ 3.2-3713. Commissioner's actions.

Nothing in this chapter shall require the Commissioner to report for prosecution, or institute seizure proceedings, where the Commissioner considers the violations of this chapter to be minor. In such cases, the Commissioner may serve a suitable notice of warning in writing, when he believes that the public interest will be best served by so doing.

1974, c. 647, § 3.1-126.8; 1994, c. 649; 2008, c. 860.

§ 3.2-3714. Duty of attorneys for the Commonwealth.

It shall be the duty of each attorney for the Commonwealth with responsibility for the enforcement of this chapter, and to whom any violation is reported, to commence proceedings and prosecute in an appropriate court without delay.

1994, c. 649, § 3.1-126.12:2; 2008, c. 860.

§ 3.2-3715. Prohibited acts; penalty.

A. It is unlawful to:

1. Sell or offer to sell any liming material unless it complies with provisions of this chapter;

2. Sell or offer for sale liming material that contains toxic materials in quantities injurious to plants or animals; and

3. Hinder or obstruct in any way the Commissioner in the performance of his official duties.

B. Any person who violates any provision of this chapter is guilty of a Class 3 misdemeanor.

1974, c. 647, § 3.1-126.11; 1994, c. 649; 2008, c. 860.

Chapter 38. Plants and Plant Products Inspection.

§ 3.2-3800. Definitions.

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

"Dealer" means any person that acquires nursery stock for the purpose of resale and distribution who is not a grower of nursery stock.

"Inspection certificate" means a document in any form issued by the Commissioner, or the appropriate official from another state, declaring an item or location to be apparently free from plant pests. Inspection certificates include nursery stock certificates, phytosanitary stock certificates, state-of-origin certificates, or any other certification tags, seals, and stamps that verify compliance with this chapter or any regulations adopted hereunder.

"Nursery" means any premises where nursery stock is propagated, grown, fumigated, treated, packed, stored, or otherwise prepared for sale or distribution.

"Nursery stock" means all trees, shrubs, woody vines (including ornamentals), bush fruits, grapevines, fruit trees, and nut trees offered for sale and distribution; all buds, grafts, scions, and cuttings from such plants; and any container, soil, and other packing material with such plants or plant products. It shall also mean herbaceous plants (including strawberry plants, narcissus plants, and narcissus bulbs) if the Board determines that controlling the movement of such plants or bulbs is necessary to control any plant pest. Unless designated by the Board, nursery stock shall not include florist or greenhouse plants for inside culture or use.

"Nurseryman" means any person that produces nursery stock for sale or distribution.

"Person" means the term as defined in § 1-230. The term also means any society.

"Plant pest" means any living stage of insects, mites, nematodes, slugs, snails, protozoa, other invertebrate animals, bacteria, fungi, other parasitic plants, parasitic plant parts, viruses, any other similar organism, or any infectious substances that can injure, infect, or damage any plants or plant products.

"Plants or plant products" means any trees, shrubs, vines, forage, fiber, cereal, and all other plants; cuttings, grafts, scions, buds, and all other plant parts; fruit, vegetables, roots, bulbs, seeds, wood, lumber, and all other plant products; or any container, soil, and packing material with plants or plant products.

Code 1950, § 3-178.1; 1964, c. 476; 1966, c. 702, § 3.1-135; 1980, c. 291, § 3.1-188.32; 1988, c. 552; 2008, c. 860.

§ 3.2-3801. Powers and duties of the Commissioner.

A. The Commissioner shall:

1. Protect the agricultural, horticultural, and other interests of the Commonwealth from plant pests; and

2. Promptly credit all moneys collected by him as repayment to the fund in the state treasury to which such moneys are owed.

B. The Commissioner may enter into reciprocal agreements with officers of other states so that nursery stock may be sold or delivered in the Commonwealth by out-of-state nurserymen or dealers without the payment of a Virginia registration fee, provided that like privileges are granted to Virginia nurserymen or dealers by such other states.

Code 1950, §§ 3-178.4, 3-178.15, 3-178.20; 1964, c. 476; 1966, c. 702, §§ 3.1-138, 3.1-149, 3.1-154; 1980, c. 291, §§ 3.1-188.34, 3.1-188.43, 3.1-188.48; 2008, c. 860.

§ 3.2-3802. Permit required to sell or transport plant pests.

It is unlawful to sell, barter, offer for sale, move, transport, deliver, ship, or offer for shipment any plant pests without a permit from the Commissioner stating that such plant pests are: (i) not injurious; (ii) generally present already; or (iii) to be used for scientific purposes subject to specified safeguards.

Code 1950, § 3-178.14; 1964, c. 476; 1966, c. 702, § 3.1-148; 1980, c. 291, § 3.1-188.42; 2008, c. 860.

§ 3.2-3803. Licenses required of nurserymen or dealers; inspection fees.

A. It is unlawful for any nurseryman or dealer to offer for sale, sell, deliver, or give away nursery stock unless such person shall have first procured a license from the Commissioner.

B. The Commissioner shall not issue any license to a dealer except upon the payment of $25 for each separate sales location. Any dealer who fails to renew his license within the 30 days following the December 31 expiration date shall pay to the Commissioner a $15 late fee in addition to the license fee.

C. The Commissioner shall not issue any license to a nurseryman except upon the payment of $75 and receipt of an inspection certificate. At the issuance of the license, each nursery shall also pay an inspection fee of $1.50 for each acre above 50 acres of nursery stock inspected by the Commissioner. Any nurseryman who fails to renew his license within the 30 days following the December 31 expiration date shall pay to the Commissioner a $50 late fee in addition to the license fee.

D. All licenses shall expire on December 31. Any nurseryman or dealer who fails to renew his license within the 30 days following the December 31 expiration date shall be considered unlicensed for the purposes of subsection B of § 3.2-3808.

E. Any nurseryman or dealer who pays to the Commissioner a late fee in accordance with the provisions of subsection B or C is not guilty of a Class 1 misdemeanor for failure to renew his license under subsection B of § 3.2-3810.

Code 1950, § 3-178.9; 1964, c. 476; 1966, c. 702, § 3.1-143; 1980, c. 291, §§ 3.1-188.36, 3.1-188.37; 1988, c. 552; 2008, c. 860; 2018, c. 685.

§ 3.2-3804. Inspection certificate required to transport nursery stock.

A. It is unlawful to knowingly deliver, send, ship, or transport nursery stock within or into the Commonwealth without an inspection certificate clearly attached to each carload, truckload, box, bale, or package.

B. Nursery stock brought into the Commonwealth under an inspection certificate may be sold and moved by a licensed nurseryman or dealer or agent, but this shall not preclude inspection at any time within the Commonwealth.

Code 1950, § 3-178.11; 1964, c. 476; 1966, c. 702, § 3.1-145; 1980, c. 291, § 3.1-188.38; 2008, c. 860.

§ 3.2-3805. Inspections upon request.

Any person may apply to the Commissioner for an inspection certificate. The applicant shall agree to pay the expenses incurred by the Commissioner, who may respond to the applicant at his discretion. The Commissioner shall issue an inspection certificate upon successful completion of the inspection and the payment of inspection expenses.

Code 1950, § 3-178.13; 1964, c. 476; 1966, c. 702, § 3.1-147; 1980, c. 291, § 3.1-188.41; 2008, c. 860.

§ 3.2-3806. Authority for inspections; right of entry.

A. All nursery stock or plant products for sale or distribution shall be subject to inspection at any time.

B. The Commissioner may enter any nursery or dealer premises, other than a private dwelling, at reasonable times and under reasonable circumstances to examine nursery stock or plant products for sale or distribution to detect plant pests and discharge the duties prescribed herein.

C. The Commissioner may require any person who possesses nursery stock or plant products for sale or distribution to present those items for inspection and to provide full information related to origin, number, and destination.

Code 1950, §§ 3-178.9, 3-178.16, 3-178.18; 1964, c. 476; 1966, c. 702, §§ 3.1-143, 3.1-150, 3.1-152; 1980, c. 291, §§ 3.1-188.37, 3.1-188.44, 3.1-188.46; 2008, c. 860.

§ 3.2-3807. Eradication and control measures.

The Commissioner may order the owner or custodian of any infested nursery stock or plant products for sale or distribution to take eradication and control measures. The owner or custodian shall promptly carry out the order of the Commissioner. The Commissioner may take the eradication or control measures required by the order if the owner or custodian refuses or neglects to carry out the order.

Code 1950, § 3-178.9; 1964, c. 476; 1966, c. 702, § 3.1-143; 1980, c. 291, § 3.1-188.37; 2008, c. 860.

§ 3.2-3808. Nursery stock or plant products for sale or distribution subject to stop delivery or stop sale.

A. The Commissioner may stop delivery, stop sale, treat, or order returned to point of origin any nursery stock or plant products for sale or distribution if he finds: (i) a plant pest infection; or (ii) the exhibition of visual symptoms of a plant pest infestation.

B. The Commissioner may stop delivery or stop sale of: (i) any nursery stock or plant products for sale or distribution in the possession of an unlicensed nurseryman or dealer; or (ii) any nursery stock or plant products for sale or distribution that are not accompanied by an inspection certificate.

C. Any order of the Commissioner under this section shall be carried out at the owner's expense.

1980, c. 291, § 3.1-188.39; 2008, c. 860.

§ 3.2-3809. Seizure and disposition of nursery stock or plant products for sale or distribution.

Any nursery stock or plant products for sale or distribution shall be subject to seizure on complaint of the Commissioner to the appropriate court. If the court finds the nursery stock or plant products for sale or distribution to be in violation of this chapter and orders condemnation, such nursery stock or plant products shall be seized, destroyed, treated, or returned to the point of origin at the owner's expense.

Code 1950, § 3-178.12; 1964, c. 476; 1966, c. 702, § 3.1-146; 1980, c. 291, § 3.1-188.40; 2008, c. 860.

§ 3.2-3810. Penalty for violation.

A. The Commissioner may refuse, suspend, or cancel any license upon satisfactory evidence that the applicant or licensee has violated any of the provisions of this chapter or regulations adopted hereunder.

B. Any person violating any of the provisions of this chapter or regulations adopted hereunder or interfering in any way with the Commissioner in the discharge of his duties herein is guilty of a Class 1 misdemeanor.

Code 1950, §§ 3-178.18, 3-178.19; 1964, c. 476; 1966, c. 702, §§ 3.1-152, 3.1-153; 1980, c. 291, §§ 3.1-188.36, 3.1-188.46, 3.1-188.47; 1988, c. 552; 2008, c. 860.

§ 3.2-3811. Judicial review.

Judicial review of any action of the Board or the Commissioner shall be in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).

1980, c. 291, § 3.1-188.49; 2008, c. 860.

Chapter 39. Pesticide Control.

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 Game and Inland Fisheries regarding standards for the protection of wildlife and fish and to further promote cooperation with respect to programs established by the Department of Game and Inland Fisheries 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.

§ 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.

Article 2. Licensing and Registration.

§ 3.2-3914. Registration required.

Every pesticide manufactured, distributed, sold, offered for sale, used, or offered for use shall be registered in accordance with regulations adopted by the Board. Registration shall lapse unless the registrant pays an annual fee set forth in regulations adopted by the Board.

Code 1950, § 3-208.19; 1966, c. 702, § 3.1-221; 1976, c. 627; 1981, c. 260; 1989, c. 575, § 3.1-249.35; 1993, c. 773; 2008, c. 860.

§ 3.2-3915. Products registered under Federal Act.

The Commissioner may register and permit the sale and use of any pesticide registered under the Federal Insecticide, Fungicide and Rodenticide Act. Such products shall be subject to the registration fees and all other provisions of this chapter.

Code 1950, § 3-208.20; 1966, c. 702, § 3.1-222; 1975, c. 102; 1981, c. 260; 1989, c. 575, § 3.1-249.36; 2008, c. 860.

§ 3.2-3916. Products registered as single pesticide.

Products that: (i) have the same formula; (ii) are manufactured by the same person; (iii) include labelings with the same claims; and (iv) bear designations identifying the products as the same pesticide may be registered as a single pesticide without an additional fee.

Code 1950, § 3-208.22; 1960, c. 535; 1966, c. 702, § 3.1-224; 1981, c. 260; 1989, c. 575, § 3.1-249.37; 2008, c. 860.

§ 3.2-3917. Change in labeling or formulas without reregistration.

The Commissioner may allow a change in the labeling or formulas of a pesticide within a registration period without requiring reregistration provided that such changes do not lower the efficacy of the product.

Code 1950, §§ 3-208.23, 3-208.31; 1960, c. 535; 1966, c. 702, §§ 3.1-225, 3.1-233; 1976, c. 627; 1981, c. 260; 1989, c. 575, §§ 3.1-249.38, 3.1-249.63; 1993, c. 773; 2008, c. 860.

§ 3.2-3918. Statement to be filed by registrant.

A. The registrant shall file a statement with the Commissioner including:

1. The name and address of the registrant and the name and address of the person whose name will appear on the label, if other than the registrant;

2. The name of the pesticide;

3. A complete copy of the labeling accompanying the pesticide and a statement of all claims made and to be made for it including directions for use;

4. If requested, a full description of the tests made and the results thereof upon which the claims are based; and

5. Other information requested by the Board such as product efficacy, all known health and environmental impacts, and known incidents of human or wildlife illnesses.

B. In the case of renewal of registration, a statement shall be required only with respect to information different from that furnished when the pesticide was last registered or in response to additional requirements imposed by the Board.

Code 1950, § 3-208.24; 1966, c. 702, § 3.1-226; 1981, c. 260; 1989, c. 575; § 3.1-249.39; 2008, c. 860.

§ 3.2-3919. Each brand or grade to be registered; fees.

Before manufacturing, distributing, selling, offering for sale, or offering for use any pesticide, the registrant shall register each brand or grade of a pesticide with the Commissioner annually upon forms furnished by the Department and shall pay the Department an annual registration fee for each brand or grade offered for sale or use. The Commissioner shall issue a registration entitling the registrant to manufacture, distribute, or sell all registered brands until the expiration of the registration.

Code 1950, § 3-208.25; 1966, c. 702, § 3.1-227; 1970, c. 376; 1976, c. 627; 1981, c. 260; 1989, c. 575; § 3.1-249.40; 2008, c. 860.

§ 3.2-3920. Submission of complete formula.

The Commissioner may require the submission of the complete formula of any pesticide at any time.

Code 1950, § 3-208.26; 1966, c. 702, § 3.1-228; 1981, c. 260; 1989, c. 575, § 3.1-249.41; 2008, c. 860.

§ 3.2-3921. Requirements for registration.

The Commissioner shall register a pesticide if: (i) he finds the composition of the pesticide warrants any proposed claims; and (ii) the pesticide, its labeling, and any other submitted material comply with the requirements of this chapter. If either condition is not met, the Commissioner shall notify the registrant of the manner in which the pesticide, labeling, or other material fails to comply with the requirements for registration so as to afford the registrant an opportunity to make the necessary correction.

Code 1950, §§ 3-208.27, 3-208.28; 1966, c. 702, §§ 3.1-229, 3.1-230; 1981, c. 260; 1989, c. 575, §§ 3.1-249.42, 3.1-249.43; 2008, c. 860.

§ 3.2-3922. When Commissioner may refuse or cancel registration.

The Commissioner may refuse to register or cancel the registration of any brand of pesticide upon satisfactory proof that the registrant has committed any of the acts prohibited by subsection A of § 3.2-3939 or any regulation adopted by the Board. No registration shall be revoked or refused until the registrant shall have been given a hearing by the Commissioner.

Code 1950, § 3-208.29; 1966, c. 702, § 3.1-231; 1981, c. 260; 1982, c. 361; 1989, c. 575, § 3.1-249.44; 2008, c. 860.

§ 3.2-3923. When Board may refuse or cancel registration.

The Board may deny or cancel the registration of a pesticide if it finds after a public hearing that:

1. Considering the available information on the benefits of a product and any associated risks, use of the pesticide has demonstrated unreasonable adverse effects on the environment;

2. A false or misleading statement about the pesticide has been made or implied by the registrant or the registrant's agent in writing, verbally, or through any form of advertising literature; or

3. The registrant or the pesticide fails to comply with a requirement of this chapter or a regulation adopted hereunder.

1989, c. 575, § 3.1-249.45; 1992, c. 114; 2008, c. 860.

§ 3.2-3924. Annual business license required.

A. No pesticide business may sell, distribute, or store any pesticide without a pesticide business license issued pursuant to regulations adopted by the Board. The Board shall adopt regulations exempting retailers of limited quantities of nonrestricted use pesticides including grocery stores, convenience stores, drug stores, veterinarians, and other businesses who sell pesticides primarily for limited household use.

B. No person may apply or recommend for use any pesticide commercially without a pesticide business license and the employment of a certified commercial applicator responsible for: (i) the safe application of the pesticides; and (ii) providing recommendations for the use of pesticides.

C. An annual business license shall be required for each location or outlet that sells, distributes, stores, applies, or recommends for use any pesticide.

1975, c. 377, § 3.1-249.7; 1989, c. 575, § 3.1-249.46; 1993, c. 773; 2008, c. 860.

§ 3.2-3925. Fees.

A. A nonrefundable annual licensing fee shall be required with each application for a pesticide business license.

B. If a person fails to apply for renewal of a pesticide business license prior to expiration, the applicant shall pay the licensing fee and a late fee of 20 percent of the licensing fee as a condition of renewal.

1989, c. 575, § 3.1-249.47; 1993, c. 773; 2008, c. 860.

§ 3.2-3926. Records.

A. As a condition of obtaining or renewing a license, each pesticide business required to be licensed shall maintain records as required by the Board.

B. The Board may require the submission of records from a licensed pesticide business. Failure to submit a record requested by the Board is a ground for license revocation.

1975, c. 377, § 3.1-249.11; 1989, c. 575, § 3.1-249.48; 2008, c. 860.

§ 3.2-3927. Evidence of financial responsibility required of licensed pesticide business.

A. The Board shall not issue a pesticide business license until the business has furnished evidence of financial responsibility, consisting of a liability insurance policy from a person authorized to do business in the Commonwealth that protects persons who suffer legal damages as a result of the use of any pesticide by the applicant. Financial responsibility need not apply to damages or injury to agricultural crops, plants, or property being worked upon by the applicant. The Board by regulation may establish and prescribe the conditions for financial responsibility.

B. The amount of financial responsibility shall be established by the Board at a minimum of $100,000 for property damage; $100,000 for personal injury to or death of one person; and $300,000 per occurrence. The Board may accept a liability insurance policy containing a deductible clause in an amount considered usual and customary in the industry, with the provision that the insurer shall pay all claims in full and that the amount of the deductible shall be recoverable only from the insured. The Board may adopt regulations governing the provision of additional evidence of financial responsibility based upon annual gross revenue of the applicant or his employer's business and an assessment of the risks of the applicant or his employer's business to persons, property, and the environment. Such financial responsibility shall be maintained at not less than such amount at all times during the licensed period. The applicant shall notify the Board 10 days prior to any reduction at the request of the applicant or cancellation by the insurer.

1975, c. 377, § 3.1-249.9; 1981, c. 260; 1984, c. 272; 1987, cc. 258, 291; 1989, c. 575, § 3.1-249.49; 1993, c. 773; 2008, c. 860.

§ 3.2-3928. Licensing of pesticide bulk storage facilities.

The Board shall establish by regulation specific requirements for the licensing of a pesticide business that mixes, stores, or otherwise handles pesticides in bulk quantities. For the purposes of this section, bulk quantity shall not include containers approved for transportation in interstate commerce by the U.S. Department of Transportation.

1989, c. 575, § 3.1-249.50; 2008, c. 860.

Article 3. Pesticide Application and Certification.

§ 3.2-3929. Restricted use pesticides prohibited; exceptions; training required.

A. No person shall use any pesticide classified for restricted use unless that person: (i) has first complied with the certification requirements of the Board; (ii) is under the direct supervision of a certified applicator on-site and training for certification as a commercial applicator or registered technician; or (iii) is producing an agricultural commodity while under the direct supervision of a private applicator on property owned or leased by that private applicator.

B. The Board may specify by regulation the amount of training and service required to qualify a person for each classification or subclassification of certification as a commercial applicator or registered technician.

1975, c. 377, § 3.1-249.3; 1989, c. 575, § 3.1-249.51; 1993, c. 773; 1995, c. 103; 2008, c. 860.

§ 3.2-3930. Application and certification of commercial applicators.

A. No person shall use (except under supervised conditions of training for certification) or supervise the use of any pesticide in exchange for compensation of any kind other than the trading of personal services between producers of agricultural commodities without first obtaining certification as either a commercial applicator or registered technician in accordance with regulations adopted by the Board. Application for a commercial applicator's or registered technician's certificate shall be made in writing to the Commissioner. Each application for a certificate shall contain: (i) information regarding the applicant's qualifications and proposed operations; (ii) the classification or classifications the applicant is applying for; (iii) the full name of the applicant or, if the applicant is a member of a firm or partnership, the names of the principal officers of the association, corporation, or group; (iv) the principal business address of the applicant in the Commonwealth and elsewhere; and (v) any other information required by the Commissioner.

B. The Commissioner shall not issue a commercial applicator's or registered technician's certificate until the individual who uses or supervises the use of any pesticide is certified by: (i) presenting proof of completion of a training course approved by the Board and appropriate to the desired classification; and (ii) passing a written examination.

C. Each commercial applicator and registered technician shall be required to renew his certification biennially subject to payment of the required fee and presentation of proof of completion of a Board-approved recertification course. Reexamination or special examination may be required by the Board of any person: (i) whose certification has been suspended, revoked, or modified pursuant to subsection B of § 3.2-3940; (ii) if significant technological developments have occurred requiring additional knowledge; (iii) when required by additional standards established by the U.S. Environmental Protection Agency; (iv) when applying for a different classification of certification; or (v) when required by regulations of the Board. In the event that reexamination is required, the fee shall be no greater than that imposed for initial certification.

D. The Commissioner shall issue a certificate for classifications for which the applicant is qualified if he finds the applicant meets the requirements to apply pesticides in any of the classifications he has applied for; and, if the applicant is applying for a certificate to engage in aerial application, has met all of the requirements of the Federal Aviation Agency, the Department of Aviation of the Commonwealth, and any other applicable laws. The Commissioner may limit the certification of the applicant to the use of certain pesticides, or to certain areas, or to certain types of equipment if the applicant is only so qualified. If a certificate is not issued as applied for, the Commissioner shall inform the applicant in writing of the reasons within 30 days. Copies of such action shall be reported to the Board.

1975, c. 377, § 3.1-249.4; 1989, c. 575, § 3.1-249.52; 1993, c. 773; 2008, c. 860.

§ 3.2-3931. Agencies or persons exempt or partially exempt.

A. All state agencies, municipal corporations, or other governmental agencies shall be exempt from any certification fees prescribed by this article, but remain subject to the provisions of this article and regulations adopted hereunder concerning the application of pesticides.

B. Individuals, employees, or representatives of such governmental agencies shall be certified as commercial applicators or registered technicians for the use of pesticides covered by the applicant's certification. The certification shall be valid only when applying or supervising application of pesticides used by such governmental agencies.

C. The following persons shall be exempt from the provisions of this article: (i) persons conducting laboratory research involving restricted use pesticides; (ii) doctors of medicine or doctors of veterinary medicine applying pesticides as drugs or medication, or to control pests in corpses during the normal course of their practice; (iii) providers of janitorial, cleaning, or sanitizing services if the providers use no pesticides other than nonrestricted use sanitizers, disinfectants, and germicides; (iv) persons who apply paints containing pesticides, provided that the pesticides in the paints are not restricted use pesticides; (v) classes of persons specified by regulation who can use or supervise the use of pesticides with minimal risk to the public health and safety by virtue of their experience and knowledge regarding the safe use of pesticides; and (vi) classes of persons specified by regulation whose use or supervision of the use of pesticides can be accomplished with minimal risk to the public health and safety by virtue of the nature of the pesticides used or method of application of the pesticides.

D. A painter who applies restricted-use marine antifoulant paint only under the direct, on-site supervision of a commercial applicator is not required to be a commercial applicator or a registered technician, provided that one commercial applicator may not provide on-site supervision for more than eight paint applicators.

E. Neither the provisions of this chapter nor regulations adopted hereunder shall require the certification of any person who uses or supervises the use of any pesticide that is not a restricted use pesticide only on property owned or leased by his employer as part of his job duties. This exemption shall not apply to any person who: (i) uses or supervises the use of any pesticide on any area open to the general public at educational institutions, health care facilities, day-care facilities, or convalescent facilities; (ii) uses or supervises the use of any pesticide within any area where open food is stored, processed, or sold; (iii) uses or supervises the use of any pesticide on any recreational land over five acres in size; and (iv) is otherwise specifically required by this article to be certified as a commercial applicator.

1975, c. 377, § 3.1-249.5; 1989, c. 575, § 3.1-249.53; 1993, c. 773; 1995, c. 103; 2008, c. 860.

§ 3.2-3932. Application and certification of private applicators.

A. It is unlawful to use or supervise the use of any pesticide classified for restricted use on any property, unless the applicator: (i) has first obtained certification from the Commissioner as a private applicator; (ii) is exempt or excepted from the requirement to be certified; or (iii) is producing an agricultural commodity while under the direct supervision of a private applicator on property owned or leased by that private applicator.

B. An applicator shall be required to renew his certification biennially under the classification or subclassification for which such applicator is certified. The Commissioner shall require reexamination or special examination of any applicator if: (i) certification has been suspended, revoked, or modified pursuant to § 3.2-3940; (ii) significant technological developments have occurred requiring additional knowledge; (iii) required by additional standards established by the U.S. Environmental Protection Agency; or (iv) required by regulations of the Board. To obtain recertification, the applicator shall furnish satisfactory evidence of completion of educational courses, programs, or seminars approved by the Board.

C. The Commissioner shall inform the applicant in writing of his decision within 30 days.

1975, c. 377, § 3.1-249.6; 1976, c. 236; 1989, c. 575, § 3.1-249.54; 1993, c. 773; 2008, c. 860.

§ 3.2-3933. Certificate renewals; late fee for delinquent renewals; reexamination.

A. If the application for renewal of any certificate provided for in this article is not filed prior to a date established by the Board, then a late fee of 20 percent shall be added to the renewal fee and paid by the applicant before renewal. If the certificate is not renewed within 60 days following the expiration of the certificate, then the applicant must take another examination.

B. The Board may provide by regulation for the biennial payment of commercial applicator and registered technician certificate renewal fees.

1975, c. 377, § 3.1-249.7; 1989, c. 575, § 3.1-249.55; 1993, c. 773; 2008, c. 860.

§ 3.2-3934. Reciprocal agreement.

The Commissioner may issue a certificate on a reciprocal basis to a nonresident who is licensed or certified in another state or by a federal agency substantially in accordance with the provisions of this chapter. Such a certificate may be suspended or revoked as other certifications issued hereunder, and may be suspended or revoked if the nonresident's base state or federal certification is suspended or revoked.

1975, c. 377, § 3.1-249.12; 1976, c. 236; 1989, c. 575, § 3.1-249.57; 2008, c. 860.

Article 4. Marine Antifoulant Paints.

§ 3.2-3935. Definitions.

As used in this article, unless the context requires otherwise:

"Acceptable release rate" means a measured release rate not to exceed 4.0 micrograms per square centimeter per day at steady state conditions as determined in accordance with a U.S. Environmental Protection Agency (EPA) testing procedure as outlined in the EPA data call-in notice of July 29, 1986, on tributyltin in antifoulant paints under the Federal Insecticide, Fungicide and Rodenticide Act, (7 U.S.C. § 136 et seq.); or a lower release rate if adopted by the Board as necessary to protect health or the environment.

"Commercial boat yard" means any facility that engages for hire in the construction, storage, maintenance, repair or refurbishing of vessels (other than seaplanes) or any licensed independent marine maintenance contractor who engages in such activities.

"Marine antifoulant paint" means any compound, coating, paint or treatment applied or used for the purpose of controlling freshwater or marine fouling organisms on vessels.

"Tributyltin compounds" means any compound having three normal butyl groups attached to a tin atom and with or without an anion such as chloride, fluoride or oxide.

"Vessel" means every description of watercraft, other than a seaplane, used or capable of being used as a means of transportation on the water, whether self-propelled or otherwise, and includes barges and tugs.

1987, c. 15, § 3.1-249.22; 1989, c. 575, § 3.1-249.59; 2008, c. 860.

§ 3.2-3936. Sale and application of tributyltin compounds.

A. Except as otherwise provided in this section, it is unlawful to distribute, possess, sell or offer for sale, apply or offer for use or application any marine antifoulant paint containing tributyltin compounds. Authorized personnel of the Department of Game and Inland Fisheries, Virginia Marine Resources Commission, or the Department may seize any antifoulant paint held in violation of this article and any seized substances shall be considered forfeited.

B. A person may distribute or sell a marine antifoulant paint containing tributyltin with an acceptable release rate to the owner or agent of a commercial boat yard. The owner or agent of a commercial boat yard may possess, apply, or purchase an antifoulant paint containing tributyltin with an acceptable release rate. Such paint may be applied only within a commercial boat yard and only to vessels that exceed 25 meters (82.02 feet) in length or that have aluminum hulls.

C. A person may distribute, sell or apply a marine antifoulant paint containing tributyltin with an acceptable release rate if: (i) the paint is distributed or sold in a spray can in a quantity of 16 ounces avoirdupois weight or less; and (ii) is commonly referred to as outboard or lower unit paint.

1987, c. 15, § 3.1-249.23; 1989, c. 575, § 3.1-249.60; 2008, c. 860.

§ 3.2-3937. Educational programs.

The State Water Control Board, the Board of Game and Inland Fisheries, the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, and the Department shall through cooperative programs develop and implement a program to inform interstate and intrastate paint manufacturers and distributors, vessel owners, and commercial boat yards of the properties of tributyltin in marine antifoulant paints and the law to restrict its use.

1987, c. 15, § 3.1-249.24; 1989, c. 575, § 3.1-249.61; 2008, c. 860.

Article 5. Violations, Penalties, and Proceedings in Case of Violations.

§ 3.2-3938. Misbranded pesticides.

Any pesticide or device is misbranded if:

1. Its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients that is false or misleading in any particular;

2. It is an imitation of or is offered for sale under the name of another pesticide;

3. Its labeling bears any reference to registration under this chapter;

4. The accompanying labeling does not contain directions for use that are adequate for the protection of the public;

5. The label does not contain a warning or caution statement that may be necessary and, if complied with, adequate to prevent injury to man, other vertebrate animals, vegetation, and useful invertebrate animals;

6. The label does not bear an ingredient statement or guaranteed analysis statement on the immediate container of the retail package (and on the outside container or wrapper if such statement on the immediate container cannot be clearly read) that is presented or displayed under customary conditions of purchase. The Commissioner may permit the ingredient statement to appear prominently on some other part of the container if the size or form of the container makes it impracticable to place it on the part of the retail package that is presented or displayed under customary conditions of purchase;

7. Any words, statement, or other information required under this chapter to appear on the labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

8. In the case of an insecticide, fungicide, or herbicide, when used as directed or in accordance with commonly recognized safe practice, it shall be injurious to living man or other vertebrate animals or vegetation to which it is applied, or to the person applying such pesticide, excepting pests and weeds; or

9. In the case of a plant regulator, defoliant, or desiccant, when used as directed it shall be injurious to living man or other vertebrate animals, or vegetation to which it is applied, or to the person applying such pesticide; provided that physical or physiological effects on plants or parts thereof shall not be deemed to be injury, when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with the label claims and recommendations.

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

§ 3.2-3939. Violations generally.

A. It is unlawful for any person to manufacture, distribute, sell, offer for sale, use or offer for use:

1. Any pesticide not registered pursuant to the provisions of this chapter; any pesticide if any of the claims made for it or any of the directions for its use differ in substance from the representations made in connection with its registration; or any pesticide if the composition of a pesticide differs from its composition as represented in connection with its registration.

2. Any pesticide sold, offered for sale, or offered for use that is not in the registrant's or the manufacturer's unbroken container, and does not have an affixed and visible label bearing the following information:

a. The name and address of the manufacturer, registrant, or person for whom manufactured;

b. The name, brand, or trademark under which said pesticide is sold; and

c. The net weight or measure of the content, subject to reasonable variations as permitted by the Commissioner.

3. Any pesticide containing any substance in quantities highly toxic to man, unless the label bears:

a. A skull and crossbones;

b. The word "poison" shown prominently in red on a background of distinctly contrasting color; and

c. A statement of an antidote for the pesticide.

4. The pesticides commonly known as lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosilicate, and barium fluosilicate, unless they have been distinctly colored as provided by regulations issued hereunder. Any other white powder pesticide that the Commissioner requires to be distinctly colored after an investigation of and after a public hearing on the necessity for such action. The Commissioner may exempt any pesticide to the extent that it is intended for a particular use if he determines that distinctive coloring is unnecessary for the protection of the public health.

5. Any pesticide that is adulterated or misbranded, or any device that is misbranded.

6. Any pesticide that is the subject of a stop sale, use, or removal order as provided for in § 3.2-3944 until such time as the provisions of that section have been met.

B. It is unlawful for any person to use or cause to be used any pesticide in a manner inconsistent with its labeling or regulations of the Board, provided that such deviation may include provisions set forth in Section 2 (ee) of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.).

C. It is unlawful to dispose of containers or unused portions of pesticide in a manner inconsistent with label directions or the regulations of the Board in the absence of label directions, or if those regulations further restrict such disposal.

D. It is unlawful for any person to knowingly use any pesticide against any organism that is otherwise protected under fish, game, or migratory bird laws, without first obtaining authorization as necessary from the federal or state agency responsible for the protection of the organism.

E. It is unlawful for any person to detach, alter, deface or destroy, in whole or in part, any label or labeling provided for in this chapter or the regulations adopted hereunder.

F. It is unlawful for any manufacturer, distributor, dealer, carrier, or other person to refuse, upon a request in writing specifying the nature or kind of pesticide or device to which such request relates, to furnish to or permit any person designated by the Commissioner to have access to and to copy such records of business transactions as may be essential in carrying out the purposes of this chapter.

G. It is unlawful for any person to give a guaranty or undertaking provided for in § 3.2-3941 that is false in any particular, except that a person who receives and relies upon a guaranty authorized under such section may give a guaranty to the same effect, which guaranty shall contain in addition to his own name and address the name and address of the person residing in the U.S. from whom he received the guaranty or undertaking.

H. It is unlawful for any person to oppose or interfere in any way with the Commissioner in carrying out the duties imposed by this chapter.

Code 1950, §§ 3-208.31, 3-208.32, 3-208.34, 3-208.35, 3-208.37; 1960, c. 535; 1966, c. 702, §§ 3.1-233, 3.1-234, 3.1-236, 3.1-237, 3.1-239; 1970, c. 376, § 3.1-233.1; 1975, c. 102; 1976, c. 627; 1981, c. 260; 1989, c. 575, §§ 3.1-249.63 to 3.1-249.67, 3.1-249.69; 1993, c. 773; 2008, c. 860.

§ 3.2-3940. Administrative violations.

A. In addition to imposing civil penalties and referring violations for criminal prosecution, the Board may deny, suspend, modify, or revoke a license after providing an opportunity for a hearing if it finds that the applicant, licensee, or his employee has committed any of the following violations:

1. Made false or fraudulent claims through any media misrepresenting the effect of materials or methods;

2. Made a pesticide recommendation inconsistent with the label registered pursuant to this chapter, provided that such deviation may include provisions set forth in Section 2 (ee) of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.);

3. Acted as a pesticide business with negligence, incompetence, or misconduct;

4. Made false or fraudulent records, invoices, or reports;

5. Failed to submit records required by the Board;

6. Used fraud, misrepresentation, or false information in an application for a license or a renewal of a license; or in selling or offering to sell pesticides;

7. Stored or disposed of containers or pesticides by means other than those prescribed on the label or by regulation;

8. Provided or made available any restricted use pesticide to any person not certified to apply such product;

9. Failed to notify the Department of a reportable pesticide spill, accident, or incident;

10. Acted as a pesticide business without first obtaining the pesticide business license required in § 3.2-3924; or

11. Failed to pay any civil penalty assessed by the Board.

B. After opportunity for a hearing, the Board may deny, suspend, revoke, or modify the provision of any certificate if it finds that the applicant or the holder of a certificate has:

1. Made claims through any media that intentionally misrepresent the effects on the environment likely to result from the application of a pesticide;

2. Used or caused to be used any pesticide inconsistent with: (i) the label registered by the U.S. Environmental Protection Agency; (ii) a Virginia state registered use; or (iii) other permissible uses;

3. Applied any pesticide in a negligent manner;

4. Failed to comply with the provisions of Article 3, regulations adopted hereunder, or of any lawful order of the Commissioner or the Board;

5. Failed to: (i) keep and maintain required records or reports; or (ii) furnish or permit access to any such records or reports for copying by the Commissioner;

6. Made false or fraudulent records, invoices, or reports concerning the use or application of any pesticide;

7. Used or caused to be used any pesticide classified for restricted use unless under the direct supervision of a certified applicator;

8. Used fraud or misrepresentation in applying for a certificate or renewal of a certificate;

9. Failed to comply with any limitations or restrictions on a certification;

10. Aided, abetted, or conspired with any person to violate the provisions of Article 3;

11. Impersonated any federal, state, or local official;

12. Made any statement, declaration, or representation implying that any person certified or registered under the provisions of Article 3 is recommended or endorsed by any agency of the Commonwealth; or

13. Been convicted or is subject to a final order assessing a penalty pursuant to § 14 (a) or (b) of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.).

C. The Commissioner may, without a hearing, suspend the license of any person licensed or certified simultaneously with the institution of proceedings for a hearing, if he finds there is a substantial danger to the public health, safety, or the environment. The hearing shall be scheduled within a reasonable time of the date of the summary suspension.

D. Any licensee or certificate holder whose license or certificate has been suspended shall not engage in the activity for which he has been certified or licensed pending the hearing.

E. The Board shall suspend a license or certificate if a civil penalty is not paid within 60 days or a challenge is not made pursuant to subsection D of § 3.2-3943. When deciding whether to deny, suspend, revoke, or modify any certificate or license, the Board shall give due consideration to: (i) the history of previous violations; (ii) the seriousness of the violation including any irreparable harm to the environment and any hazards to the health and safety of the public; and (iii) the demonstrated good faith in attempting to achieve compliance with the chapter after notification of the violation.

Code 1950, § 3-208.31; 1960, c. 535; 1966, c. 702, § 3.1-233; 1976, c. 627; 1981, c. 260; 1989, c. 575, §§ 3.1-249.63, 3.1-249.76; 1993, c. 773; 2008, c. 860.

§ 3.2-3941. Exemptions from penalties.

The penalties provided for violations of subsection A of § 3.2-3939 and § 3.2-3940 shall not apply to:

1. Any carrier transporting pesticides if such carrier permits the Commissioner to copy all records showing the transactions in and movements of the pesticides upon request;

2. Public officials of the Commonwealth and the federal government engaged in the performance of their official duties;

3. Individuals or agencies authorized by law to conduct research in the field of pesticides when such research is conducted in accordance with regulations established by the Board; and

4. Any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom he purchased and received in good faith the pesticide in the same unbroken package, to the effect that the pesticide was lawfully registered at the time of sale and delivery to him, and that it complies with the other requirements of this chapter, designating this chapter. In such case the guarantor shall be subject to the penalties that would otherwise attach to the person holding the guaranty under the provisions of this chapter.

Code 1950, § 3-208.44; 1966, c. 702, § 3.1-246; 1981, c. 260; 1989, c. 575, § 3.1-249.74; 2008, c. 860.

§ 3.2-3942. Right of entry; warrant requirements; procedure.

A. The Commissioner may enter any public or private premises operating as a pesticide business at reasonable times, with the consent of the owner or tenant thereof, and upon presentation of appropriate credentials for carrying out the purposes of this chapter.

B. If the Commissioner is denied access, he may apply for an administrative search warrant from a judge with authority to issue criminal warrants or a magistrate whose jurisdiction encompasses the premises.

1. No warrant shall be issued except upon probable cause and supported by an affidavit particularly describing (i) the place, things, or persons to be inspected or tested; and (ii) the purpose for which the inspection, testing, or collection of samples is to be made.

2. Probable cause shall exist if either (i) reasonable legislative or administrative standards for conducting inspection, testing, or collection of samples are satisfied with respect to the particular place, thing, or person, or (ii) there is cause to believe that a condition, object, activity, or circumstance legally justifies the inspection, testing, or collection of samples.

3. The supporting affidavit shall contain either (i) a statement that consent to inspect, test, or collect samples has been sought and refused, or (ii) facts or circumstances reasonably justifying the failure to seek consent. If probable cause is based upon legislative or administrative standards for selecting places of business for inspection, the affidavit shall contain factual allegations sufficient to justify an independent determination by the court that the inspection program is based on reasonable standards and that the standards are being applied to a particular place of business in a neutral and fair manner. After issuing a warrant under this section, the magistrate or judge shall file the affidavit in the manner prescribed by § 19.2-54.

C. Any administrative search warrant shall be effective for a period of not more than 15 days unless extended or renewed by the judicial officer who issued the original warrant. The warrant shall be executed and returned to the clerk of the circuit court of the city or county wherein the search was made within the time specified or within the extended or renewed time. The return shall list any records removed or samples taken pursuant to the warrant. The warrant shall be void after the expiration of time unless executed or renewed.

D. No warrant shall be executed in the absence of the owner, tenant, operator, or custodian of the premises unless the issuing judicial officer specifically authorizes that such authority is reasonably necessary to affect the purposes of the law or regulation. Entry pursuant to such a warrant shall not be made forcibly. The issuing officer may authorize a forcible entry where the facts (i) create a reasonable suspicion of an immediate threat to the health and safety of persons or to the environment, or (ii) establish that reasonable attempts to serve a previous warrant have been unsuccessful. If forcible entry is authorized, the warrant shall be issued jointly to the Commissioner and to a law-enforcement officer who shall accompany the Commissioner during the execution of the warrant.

E. No court of the Commonwealth shall have jurisdiction to hear a challenge to the warrant prior to its return, except as a defense in a contempt proceeding or if the owner or custodian of the place to be inspected submits a substantial preliminary showing by affidavit and accompanied by proof that (i) a statement included by the affiant in his affidavit for the administrative search warrant was false and made knowingly and intentionally or with reckless disregard for the truth, and (ii) the false statement was necessary to the finding of probable cause. The court may conduct in camera review as appropriate.

F. After the warrant has been executed and returned, the validity of the warrant may be reviewed either as a defense to any Notice of Violation or by declaratory judgment action brought in a circuit court. The review shall be confined to the face of the warrant, affidavits, and supporting materials presented to the issuing judicial officer. If the owner or custodian of the place inspected submits a substantial showing by affidavit and accompanied by proof that (i) a statement included in the warrant was false and made knowingly and intentionally or with reckless disregard for the truth, and (ii) the false statement was necessary to the finding of probable cause, the reviewing court shall limit its inquiry to whether there is substantial evidence in the record supporting the issuance of the warrant and shall not conduct a de novo determination of probable cause.

1975, c. 377, § 3.1-249.18; 1989, c. 575, § 3.1-249.58; 1993, c. 773; 2008, c. 860; 2014, c. 354.

§ 3.2-3943. Civil penalties; procedure.

A. The Board may assess against any person violating this chapter or regulations adopted hereunder a civil penalty after providing written notice of the alleged violation. Such notice shall not constitute a case decision as defined in § 2.2-4001. The person so notified shall have 30 days to provide any additional, relevant facts to the Board, including facts that demonstrate a good-faith attempt to achieve compliance. In determining the amount of any civil penalty, the Board shall give due consideration to (i) the history of previous violations; (ii) the seriousness of the violation, including any irreparable harm to the environment and any hazards to the health and safety of the public; and (iii) the demonstrated good faith in attempting to achieve compliance.

B. No sooner than 30 days after providing written notice of the alleged violation pursuant to subsection A, the Board may assess a penalty of not more than $1,000 for a violation that is less than serious; not more than $5,000 for a serious violation; and not more than $20,000 for a repeat or knowing violation. The Board may assess an additional penalty of up to $100,000 for any violation that causes serious damage to the environment, serious injury to property, or serious injury to or death of any person.

C. Civil penalties assessed under this section shall be paid into Pesticide Control Fund established in § 3.2-3912. The Commissioner shall prescribe procedures for payment of penalties that are not contested by licensees or persons, including provisions for a person to consent to abatement of the alleged violation and payment of a penalty or negotiated sum in lieu of such penalty without admission of civil liability.

D. The person to whom a civil penalty is issued shall have 15 days to request an informal fact-finding conference, held pursuant to § 2.2-4019, to challenge the fact or amount of the civil penalty. If the civil penalty is upheld, such person shall have 15 days to (i) pay the proposed penalty in full or contest either the amount of the penalty or the fact of the violation and (ii) forward the proposed amount to the Commissioner's office for placement in an interest-bearing trust account in the State Treasurer's office. If administrative or judicial review shows no violation or that the amount of penalty should be reduced, the Commissioner shall have 30 days from that showing to remit the appropriate amount to the person, with interest accrued thereon. If the violation is upheld, the amount collected shall be paid into the Pesticide Control Fund.

E. Final orders of the Board may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification by the secretary of the Board. Such orders may be appealed in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, §§ 3-208.39, 3-208.42; 1966, c. 702, §§ 3.1-241, 3.1-244; 1970, c. 376; 1989, c. 575, § 3.1-249.70; 1993, c. 773; 2008, c. 860; 2016, c. 320.

§ 3.2-3944. "Stop-sale or removal" orders; "stop-use" orders; judicial review.

A. When the Commissioner has reason to believe that a pesticide is being offered for sale or use or is being used in violation of any of the provisions of this chapter, he shall issue and enforce a written or printed "stop sale or removal" order. The order shall be directed to the owner or custodian of the lot of pesticide and shall require him to hold the pesticide at a designated place until this chapter has been complied with and the pesticide is released in writing by the Commissioner or the violation is otherwise legally disposed of by written authority. The owner or custodian of such pesticide shall have the right to administrative and judicial review of such order in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). The provisions of this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter. The Commissioner shall release the pesticide when the requirements of the provisions of this chapter have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

B. When the Commissioner has reason to believe that any pesticide is being offered for sale or use or is being used in violation of any of the provisions of this chapter by a person, he shall issue and enforce a written or printed "stop-use" order until the Pesticide Control Act has been complied with or the violation has been otherwise legally disposed of by written authority. The person shall have the right to administrative and judicial review of such order in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). The provisions of this section shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of this chapter.

Code 1950, § 3-208.46; 1966, c. 702, § 3.1-248; 1981, c. 260; 1986, c. 615; 1989, c. 575, § 3.1-249.77; 1993, c. 773; 2008, c. 860.

§ 3.2-3945. Seizure, condemnation, and sale.

Any lot of pesticide in violation of this chapter shall be subject to seizure on complaint of the Commissioner to the circuit court in the area where the pesticide is located. If the court finds the pesticide to be in violation of this chapter and orders its condemnation, it shall be disposed of after the claimant is provided an opportunity to apply for the release of the pesticide or for permission to process, relabel, or otherwise bring it into compliance with this chapter.

Code 1950, § 3-208.47; 1966, c. 702, § 3.1-249; 1981, c. 260; 1989, c. 575, § 3.1-249.78; 2008, c. 860.

§ 3.2-3946. Proceedings in case of violations.

A. If the examination of laboratory results or other evidence collected during an investigation appears to show a violation of this chapter or any of the regulations issued hereunder, the Commissioner may provide notice of the alleged violation to the registrant, distributor, possessor, licensee, applicator, or other person from whom such evidence was taken. This notice shall not constitute a case decision as defined in § 2.2-4001.

B. It shall be the duty of every attorney for the Commonwealth to whom the Commissioner shall report any violation of this chapter to cause proceedings to be prosecuted without delay.

C. Nothing in this chapter shall be construed as requiring the Commissioner to report for the institution of proceedings under this chapter, minor violations of this chapter, whenever the Commissioner believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning. Copies of such warnings shall be reported to the Board.

Code 1950, §§ 3-208.40, 3-208.41, 3-208.43; 1966, c. 702, §§ 3.1-242, 3.1-243, 3.1-245; 1981, c. 260; 1989, c. 575, §§ 3.1-249.71 to 3.1-249.73; 2008, c. 860; 2016, c. 320.

§ 3.2-3947. Penalties.

A. Except as otherwise provided, any person who knowingly violates any provisions of this chapter or regulations adopted hereunder is guilty of a Class 1 misdemeanor and shall be subject to an additional fine of up to $500,000 if death or serious physical harm to any person is caused by the violation.

B. The Commissioner may bring an action to enjoin the violation or threatened violation of this chapter or any regulation adopted hereunder in the circuit court of the county or city where the violation occurs or is about to occur, or in the Circuit Court of the City of Richmond if the violation may affect more than one county or city. The Commissioner may request either the attorney for the Commonwealth or the Attorney General to bring action under this section, when appropriate.

Code 1950, §§ 3-208.39, 3-208.42; 1966, c. 702, §§ 3.1-241, 3.1-244; 1970, c. 376; 1989, c. 575, § 3.1-249.70; 1993, c. 773; 2008, c. 860.

Chapter 40. Seeds.

Article 1. Seeds.

§ 3.2-4000. Definitions.

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

"Advertisement" means any representation relating to seed within the scope of this article that is not also required labeling.

"Agricultural seed" means seeds of grass, forage, cereal, and fiber crops; any other seed commonly recognized as agricultural seed; and any lawn seed, turf seed, and mixtures thereof (including any noxious-weed seeds that may be present).

"Bag" or "packet" means a container in the form of a sack or pouch.

"Blend" means a mechanical combination of varieties of the same kind that is identified by a blend designation and is always present in the same percentages in each lot so designated.

"Brand" means the name, term, design, or trademark of seed offered for sale.

"Bulk" or "in bulk" means loose seed in bins or other containers, but not bags or packets.

"Certified seed," "registered seed," or "foundation seed" means seed produced and labeled in compliance with the procedures and requirements of an official certifying agency of a state, the United States, a province of Canada, or the government of a foreign country where the seed was produced.

"Code designation" means an identification assigned by the U.S. Department of Agriculture.

"Conditioning" means any process of cleaning, scarifying, treating, or blending seed that changes the purity or germination of the seed.

"Controlled conditions" means minimum seed stock standards established by regulation.

"Cool-season lawn and turf seed" means the seed of any lawn and turf grass identified in the section of the most current Recommended Uniform State Seed Law, as established by the Association of American Seed Control Officials, pertaining to label requirements for agricultural, vegetable, and flower seeds.

"Distribute" means to import, consign, produce, mix, blend, condition, sell, offer for sale, barter, warehouse, or supply seeds in the Commonwealth.

"Dormant seed" means viable seed other than hard seed that fails to germinate when provided the specified germination conditions.

"Flower seed" means any seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts; any other seeds commonly recognized as flower seeds; and any seeds designated as flower seeds by regulations.

"Germination" means the percentage, by count, of seeds under consideration capable of producing normal seedlings in a given period of time and under conditions specified by regulations.

"Guarantor" means the person whose name appears on the label.

"Hard seed" means seeds that do not absorb moisture and germinate, thus remaining hard during the period prescribed for germination by regulations.

"Hybrid" means the first generation seed of a cross produced by controlling pollination or using sterile lines and combining: (i) two, three, or four inbred lines; (ii) one inbred line, or a single cross, with an open-pollinated variety; or (iii) two varieties or species, except open-pollinated varieties of corn.

"Inbred line" means a relatively stable and pure breeding strain resulting from: (i) four or more successive generations of controlled self-pollination; or (ii) four successive generations of backcrossing male sterile lines.

"Inert matter" means all matter not seeds and includes broken seeds, sterile florets, chaff, fungus bodies, and stones as determined by methods prescribed by regulations.

"Kind" means related species or subspecies known by a common name including wheat, oats, hairy vetch, white sweet clover, cabbage, and cauliflower.

"Labeling" means all labels, tags, and any other written, printed, or graphic statements or representations (including representations on invoices) in any form pertaining to any seed.

"Lawn and turf seed" means seeds of grasses commonly recognized and sold for lawns or other areas where turf is grown for beautification or erosion control.

"Lawn or turf seed mixture" means two or more kinds of agricultural seeds that are combined and sold for lawns or other areas where turf is grown for beautification or erosion control.

"Lot" means a definite quantity of seed that is identified by a number or other identification and is uniform throughout for the factors appearing on the label.

"Mixture" means seeds consisting of more than one kind or variety, when claimed or present, in excess of five percent of the whole.

"Name of mixture" means the name or term designating a specific lawn or turf seed mixture.

"Noxious-weed seed" means prohibited noxious-weed seeds and restricted noxious weed seeds.

"Origin" means the state, territory, foreign country, or designated portion thereof, where the seed was grown.

"Prohibited noxious-weed seed" means seeds of weeds that are highly destructive and not controllable by common practices.

"Pure seed" means agricultural or vegetable seed exclusive of inert matter and other seeds distinguishable from the kind, or kind and variety, being considered. Pure seed shall be determined by methods prescribed by regulations.

"Quantity statement" means the net weight (mass), net volume (liquid or dry), count, or other form of measurement of a commodity.

"Recognized variety name" and "recognized hybrid designation" mean the name or designation first assigned to the variety or hybrid by the person who developed and introduced it for production or sale.

"Registrant" means the person registering a lawn or turf seed mixture pursuant to this article.

"Restricted noxious-weed seed" means weed seeds that are very objectionable in fields, lawns, and gardens and are difficult to control by common practices.

"Sale" means the transfer of ownership of seed as evidenced by the exchange of payment or seed, in whole or in part.

"Screenings" means seed, inert matter, and other materials removed from agricultural seed or vegetable seed by cleaning or conditioning.

"Stop sale, use, removal, or seizure order" means an order that prohibits the distributor from selling, relocating, using, or disposing of seed until the Commissioner or the court gives written permission.

"Tolerance" means the allowable deviation from any figure used on a label to designate the percentage of any fraction or rate of occurrence in the lot and is based on the law of normal variation from a mean.

"Transgenetic" means any plant material or seed that has undergone the transfer of a gene from one genera to another.

"Treated" means seed that has received an effective application of: (i) a generally approved substance; (ii) a process designed to control or repel certain disease organisms, insects, or other pests; or (iii) any other treatment to improve its planting value.

"Tree and shrub seed" means seeds of woody plants commonly recognized as trees and shrubs and designated by regulations.

"Turf" means the same as that term is defined in § 3.2-3600.

"Variety" means a subdivision of a kind characterized by growth, plant, fruit, seed, or other characteristics that distinguish it from other plants of the same kind.

"Vegetable seed" means seeds of crops grown in gardens and on truck farms commonly recognized as vegetable seed and designated by regulations.

"Weed seed" means seeds, bulblets, or tubers of plants commonly recognized as weeds, including noxious-weed seeds.

Code 1950, § 3-219.2; 1958, c. 483; 1966, cc. 9, 702, § 3.1-263; 1994, c. 577; 2008, c. 860; 2012, c. 297.

§ 3.2-4001. Authority of Board to adopt regulations.

The Board may adopt regulations:

1. Governing: (i) methods of sampling; (ii) methods of inspection; (iii) methods of testing in the laboratory and in the field; (iv) the establishment of standards; (v) the establishment of code designations; and (vi) the establishment of tolerances for agricultural, vegetable, flower, tree and shrub, lawn and turf seeds, mixtures of such seeds, and screenings;

2. Providing a list of prohibited and restricted noxious-weed seeds;

3. Providing for the labeling of flower seeds by kind, variety, type, or performance characteristics as required by § 3.2-4008;

4. Providing a list of tree and shrub seeds subject to the seed purity and germination labeling requirements of subsection I of § 3.2-4008;

5. Providing for the registration of the pedigree of any hybrid;

6. Providing a list of those kinds of seed that may be sold only by variety name;

7. Establishing special labeling requirements, in addition to the requirements of § 3.2-4008, for the sale or distribution of seeds produced from transgenetic plant material;

8. Providing a list of second generation hybrids that may be sold as a hybrid;

9. Providing a list of seeds specified as lawn and turf seeds; and

10. Establishing tolerances that recognize variations between analyses, tests, label statements, and subsequent analyses to be used in enforcement.

Code 1950, §§ 3-219.8, 3-219.9:1; 1958, c. 483; 1966, cc. 9, 702, §§ 3.1-269, 3.1-271; 1994, c. 577, § 3.1-275.5; 2008, c. 860.

§ 3.2-4002. Authority of Commissioner to adopt regulations.

A. The Commissioner may, by regulation: (i) adopt the Rules for Testing Seeds established by the Association of Official Seed Analysts; (ii) amend the standards for seed; (iii) amend the prohibited noxious-weed seed list; and (iv) amend the restricted noxious-weed seed list.

B. Such regulations shall be effective upon filing with the Registrar of Regulations, who shall publish the regulations as a final regulation in the Virginia Register of Regulations with a preamble stating that the Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision of such regulation.

C. The Board, after giving notice in the Virginia Register of Regulations, may reconsider and revise the regulation adopted by the Commissioner. The revised regulation shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as final regulation in the Virginia Register of Regulations. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption, reconsideration, or revision of any regulation adopted pursuant to this section.

1994, c. 577, § 3.1-271.1; 2008, c. 860.

§ 3.2-4003. Powers and duties of the Commissioner.

The Commissioner may:

1. Establish and maintain seed-testing facilities;

2. Fix and collect fees for testing seeds for farmers and dealers that have requested the tests;

3. Establish and maintain facilities for the verification of kind and variety;

4. Publish the results of analyses, tests, examinations, studies, and investigations authorized by this article together with any other information he may deem advisable;

5. Cooperate with the U.S. Department of Agriculture in seed law enforcement;

6. Require the registrant of any variety or hybrid offered for sale to furnish: (i) the recognized variety name or recognized hybrid designation of such variety or hybrid; (ii) a 1,000 viable seed sample of such seed; and (iii) the history of its development and the name of the person who developed such variety or hybrid and first introduced it for production and sale;

7. Require the registration annually of all fields planted for the production of hybrid seed on or before June 20 and provide for inspection of such fields; and

8. Appoint a seed advisory committee.

Code 1950, § 3-219.9; 1958, c. 483; 1966, cc. 9, 702, § 3.1-270; 1986, c. 615; 1994, c. 577; 2008, c. 860.

§ 3.2-4004. Seed Fund; established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Seed Fund, hereafter referred to as the "Fund." The Fund shall be established on the books of the Comptroller. All fees and assessments paid pursuant to this article 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 solely for carrying out the purpose of this article, except that the Commissioner shall deposit 50 percent of the inspection fee to the credit of the Virginia Agricultural Foundation Fund. The Virginia Agricultural Council shall administer all funds received from this section for the exclusive funding of lawn and turf research.

1994, c. 577, § 3.1-275.7; 2008, c. 860.

§ 3.2-4005. License required to market seed.

A. Any person whose name appears on the label of seed shall obtain a license from the Commissioner before distributing, selling, or offering to sell such seed in the Commonwealth. The applicant shall submit the application on a form furnished or approved by the Commissioner and shall pay a license fee of $50 at the time of application. Any person who fails to obtain a license prior to distributing, selling, or offering to sell seed shall be given a grace period of 15 working days from issuance of notification to obtain a license without penalty. Any person who fails to obtain a license by the end of the grace period shall pay a late fee of $50 in addition to the license fee amount. The assessment of this late fee shall not prohibit the Commissioner from taking further action.

B. Every license shall expire on December 31. If the holder files a renewal application on or before December 31, his license shall remain valid through January 31 or until issuance of the renewal license, whichever event first occurs.

C. The Commissioner shall refuse to issue the license to any person not in compliance with the provisions of this article, and shall revoke any license subsequently found not to be in compliance with any provision of this article.

1994, c. 577, § 3.1-275.2; 2008, c. 860.

§ 3.2-4006. Duty to maintain records.

Any person who sells, offers for sale, transports, or delivers agricultural or vegetable seed for transportation shall keep a complete record of sale, origin, germination, purity, variety, noxious weed seeds, and treatment of each lot of agricultural or vegetable seed offered for three years. The Commissioner shall have the right to inspect such records.

Code 1950, § 3-219.5; 1958, c. 483; 1966, c. 702, § 3.1-266; 1994, c. 577; 2008, c. 860.

§ 3.2-4007. Guaranty by seller.

A. Any person who sells seeds for producing crops shall be bound as guarantor that such seeds are true to kind and variety as represented at the time of sale. If such seeds are sold by an agent, the principal shall be bound by the representations of the agent with regard to the kind and variety of the seed.

B. Any person that sells seed for planting in a container that bears printed or written statements regarding the kind, variety, or quality of the seeds therein shall be bound as guarantor that such statement is accurate unless the seller affirmatively proves the existence of a contrary agreement between the parties.

Code 1950, § 3-219.13; 1958, c. 483; 1966, c. 702, § 3.1-275; 1994, c. 577; 2008, c. 860.

§ 3.2-4008. Labeling and advertising requirements.

A. All seed sold, offered for sale, transported, or advertised for planting purposes and all screenings shall bear or have attached in a conspicuous place a plainly written or printed label in the English language that provides the following information without further modification or denial in the labeling or advertisement.

B. For treated seed:

1. A word or statement indicating that the seed has been treated;

2. The commonly accepted chemical or generic name of the applied substance or treatment; and

3. A caution statement such as "Do not use for food or feed or oil purposes" if any substance in the amount present is harmful to human or other vertebrate animals. The caution for mercurials and similar toxic substances shall be a poison statement or symbol.

C. For agricultural seeds:

1. The recognized name of each kind (or kind and variety if that kind has been adopted by the Board pursuant to subdivision 6 of § 3.2-4001) of agricultural seed component in excess of five percent of the whole and the percentage by weight in order of predominance. Mixtures and agricultural seed may be sold by kind name if the seed is not for the production of an agricultural crop and the label clearly indicates "NOT FOR AGRICULTURAL PRODUCTION";

2. The word "mixture" or "mixed" shall appear conspicuously on the label if the guarantor is required to name more than one agricultural seed component;

3. The lot number or other lot identification;

4. The origin, if known; if not known, that fact shall be stated;

5. The percentage by weight of all weed seeds;

6. The name and number per ounce, pound, or metric equivalent of each kind of restricted noxious-weed seed present, subject to subdivision 1 e of § 3.2-4015;

7. The percentage by weight of agricultural and vegetable seeds other than the kind or kind and variety named on the label. Such information may be designated as "other crop seed," "other variety," or as both;

8. The percentage by weight of inert matter;

9. For each named agricultural seed:

a. The percentage of germination, exclusive of hard or dormant seed;

b. The percentage of any hard or dormant seed;

c. The month and year the test was completed to determine such percentages;

d. The "total germination and hard seed" may be stated following the information required by subdivisions a and b; and

e. The guarantor shall state separately on the label the percent of dormant seed.

10. The recognized hybrid designation for all hybrids;

11. The quantity statement; and

12. The code designation of the person who transports or delivers for transportation said seed in interstate commerce and the name and address of: (i) the person who sells, labels, or offers the seed for sale; or (ii) the person to whom the seed is sold or shipped for resale.

D. For vegetable seeds in containers of one half pound or less:

1. The name of kind and variety of seed;

2. The year packeted or put up, provided that the words "packed for" shall precede the year, or the percentage of germination and the month and year the test was completed to determine such percentage;

3. The quantity statement, except as provided by appropriate regulations;

4. The name and address of the person who labels, sells, or offers to sell the seed; and

5. For the seeds that germinate less than the standard last established by regulations:

a. The percentage of germination, exclusive of hard or dormant seed;

b. The percentage of any hard or dormant seed;

c. The month and year the test was completed to determine the percentages in subdivisions a and b;

d. The "total germination and hard seed" may be stated following the information in subdivisions a and b;

e. The guarantor shall state separately on the label the percentage of dormant seed; and

f. The words "below standard" in not less than eight-point type.

E. For vegetable seeds in bulk or in containers of more than one half pound:

1. The name of each kind and variety present in excess of five percent of the whole and the percentage by weight of each in order of its predominance;

2. The lot number or other lot identification;

3. For each named kind and variety:

a. The percentage of germination exclusive of hard or dormant seed;

b. The percentage of any hard or dormant seed;

c. The month and year the test was completed to determine the percentages in subdivisions a and b;

d. The "total germination and hard seed" may be stated; and

e. The guarantor shall state separately on the label the percent of dormant seed.

4. The quantity statement, except when in bulk;

5. The name and address of the person who labels, sells, or offers to sell the seed; and

6. The labeling requirements of subdivisions 1 through 5 for vegetable seeds sold from open containers shall be deemed to have been met if the seed is weighed from a properly labeled container in the presence of the purchaser.

F. Seeds or screenings offered for sale or distribution must be plainly labeled to indicate that such seeds or screenings are not for planting purposes if containing more than: (i) two percent by weight weed seeds; or (ii) prohibited noxious-weed seeds and restricted noxious-weed seeds in excess of the amounts prescribed by regulations.

G. For seeds in preplanted containers, mats, tapes, or other planting devices:

1. For flower seeds:

a. The name of the kind and variety or a statement of type and performance characteristics, as prescribed in the regulations adopted pursuant to the provisions of this article;

b. The month and year seed was tested or the year the seed was packaged;

c. The quantity statement, except as provided by regulations;

d. The name and address of the person who labels, sells, or offers to sell seed; and

e. Other special labeling requirements as determined by the Board.

2. For seeds of those kinds with standard testing procedures that germinate less than the germination standard established by regulations:

a. The percentage of germination exclusive of hard seed; and

b. The words "below standard" in not less than eight-point type.

3. For seeds placed in a germination medium, mat, tape, or other device making it difficult to determine the quantity of seed without removal, a statement to indicate the minimum number of seeds in the container.

H. For flower seeds in containers other than packets prepared for use in home flower gardens or household plantings and other than preplanted containers, mats, tapes, or other planting devices:

1. The name of the kind and variety or a statement of type and performance characteristics as prescribed in regulations;

2. The lot number or other lot identification;

3. The month and year that the seed was tested or the year the seed was packaged;

4. The quantity statement, except as provided by regulations;

5. The name and address of the person who labels, sells, or offers to sell the seed; and

6. For those kinds of seed for which standard testing procedures are prescribed:

a. The percentage of germination exclusive of hard seed; and

b. The percentage of any hard or dormant seed.

I. For tree and shrub seeds:

1. The accepted common and Latin name of species;

2. The variety (if applicable);

3. The quantity statement;

4. The number;

5. The year in which seed was collected;

6. The origin indicating the specific locality where the seed was collected;

7. The month and year of the date the seed was tested;

8. The percentage by weight of pure seed;

9. The percentage by weight of inert matter;

10. The percentage by weight of other crop seeds;

11. The percentage of germination exclusive of hard or dormant seed;

12. The percentage of any hard seeds;

13. The speed of germination expressed in terms of the number of days the seeds will take to reach 90 percent of total;

14. The pregermination treatment used in test;

15. The total number of seed per pound;

16. The moisture content; and

17. The name and address of the person who labels, sells, or offers to sell the seed.

J. For lawn or turf seed mixtures in prepacked containers of 100 pounds or less the information shall include:

1. The recognized name of each kind or kind and variety of each agricultural seed component in excess of five percent of the whole, and the percentage by weight of each in order of its predominance;

2. The registered name of the mixture;

3. The lot number or other lot identification;

4. The percentage by weight of all weed seeds;

5. The name and number per ounce or per pound of each kind of restricted noxious-weed seeds present, subject to subdivision 1 e of § 3.2-4015;

6. The percentage by weight of other agricultural seeds not claimed in the formula;

7. The percentage by weight of inert matter;

8. For each named agricultural seed:

a. The percentage of germination, exclusive of hard seed;

b. The percentage of any hard seed;

c. The month and year the test was completed to determine the percentages in subdivisions a and b; provided that the date of the first test of the components may be given for the entire mixture; and

d. For cool-season lawn and turf seeds and mixtures thereof, a "sell by" statement, which may provide a date no more than 15 months from the date of the germination test exclusive of the month of the germination test.

9. The quantity statement; and

10. The code designation of the person who transports or delivers for transportation the seed and the name and address of: (i) the person who sells, labels, or offers to sell the seed; or (ii) the person to whom the seed is sold or shipped for resale.

K. For transgenetic seed, in addition to any other requirements, the guarantor shall label all seed produced from transgenetic plant material pursuant to regulation.

Code 1950, § 3-219.3; 1958, c. 483; 1966, cc. 9, 702, § 3.1-264; 1994, c. 577, § 3.1-275.4; 2008, c. 860; 2012, c. 297.

§ 3.2-4009. Lawn and turf seed mixture; registration and labeling.

A. Any person packing or distributing lawn and turf seed mixture bearing a distinguishing name or trademark in prepackaged containers of 100 pounds or less shall register the mixture annually with the Commissioner and provide the following information:

1. The brand name of the lawn and turf seed mixture;

2. A statement of the specifications of the lawn and turf seed mixture indicating within five percent the percentage by weight of each kind of lawn and turf seed in the mixture;

3. A complete copy of all labeling that is to appear on the container;

4. An example of the analysis statement that is to appear on each container of a mixture; and

5. The name and address of the registrant and the name and address of the person whose name will appear on the label.

B. Every registration shall expire on December 31. If the holder files a renewal application on or before December 31, his registration shall remain valid through January 31 or until issuance of the renewal registration, whichever event first occurs.

C. The Commissioner may permit a change in the labeling or specifications of a lawn or turf seed mixture within a registration period without requiring new registration of the product provided that the name of the lawn and turf seed mixture and the specifications for the primary ingredients of the mixture are not changed.

D. The registrant shall pay to the Commissioner an annual registration fee of $50 for each named lawn and turf seed mixture in prepacked containers of 100 pounds or less prior to its distribution.

E. The Commissioner shall register the lawn and turf seed mixture if he finds that the components of the lawn and turf seed mixture are such as to warrant the proposed labeling and other claims for it and if the labeling and other submitted material comply with the requirements of this article.

F. If the Commissioner finds that the lawn and turf seed mixture does not warrant the proposed claims made for it or if the mixture and its labeling do not comply with the provisions of this article, he shall notify the registrant of the manner of noncompliance to afford the registrant an opportunity to make the necessary corrections.

G. If the Commissioner identifies any unregistered lawn and turf seed mixture during the registration year, he shall notify the guarantor and grant a grace period of 15 working days from issuance of notification for the guarantor to register the lawn and turf seed mixture and pay the registration fee without penalty. Any person required to register a lawn and turf seed mixture who fails to register within the 15 working day grace period shall pay to the Commissioner a $50 late fee in addition to the registration fee. The Commissioner may issue a stop sale, use, removal, or seizure order upon the lawn and turf seed mixture until its registration is complete.

Code 1950, § 3-219.14; 1966, c. 9, § 3.1-275.1; 1994, c. 577; 2008, c. 860.

§ 3.2-4010. Lawn and turf seed; inspection fee.

A. Any person who introduces lawn and turf seed for sale shall pay the Commissioner an annual inspection fee by January 31 following the year in which the sale occurred. The inspection fee shall be the greater of $35 or three-tenths of one percent of the gross sales receipts for lawn and turf seed sold by that person in the Commonwealth during that year. Generally accepted accounting principles shall be used to determine the gross sales receipts. The Commissioner may inspect the sales records of the person required to pay the inspection fee.

B. Any person who fails to pay the inspection fee by January 31 shall be given a grace period of 15 working days from issuance of notification to pay the inspection fee without penalty. Any person who fails to pay the inspection fee by the fifteenth day of the grace period shall also pay a late fee of 10 percent of the inspection fee due or $50, whichever is greater. The assessment of the late fee shall not prohibit the Commissioner from taking further action.

1994, c. 577, § 3.1-275.3; 2008, c. 860.

§ 3.2-4011. Inspection.

A. The Commissioner may sample, inspect, analyze, and test seeds transported, sold, or offered for sale for planting purposes and screenings for any purpose. For these purposes, the Commissioner may enter: (i) any premises during business hours; and (ii) any truck or other conveyor by land, by water, or by air at any time when such conveyor is accessible, to access seeds, mixtures of seeds, screenings, and the records required to be kept under § 3.2-4006.

B. The Commissioner shall promptly notify the person who transported, sold, or offered the seed or screenings for sale, or who otherwise violated this article.

Code 1950, § 3-219.9; 1958, c. 483; 1966, cc. 9, 702, § 3.1-270; 1986, c. 615; 1994, c. 577; 2008, c. 860.

§ 3.2-4012. Stop sale order.

The Commissioner shall issue and enforce a written or printed stop sale order to the owner or custodian of any lot of agricultural, vegetable, flower, tree and shrub, lawn and turf seed, mixtures of such seeds, or screenings if he finds a violation of any provision of this article. The stop sale order shall prohibit further sale of such seeds, mixtures of seeds, or screenings until the Commissioner has evidence of compliance. The owner or custodian shall have the right to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.). The issuance of a stop sale order shall not limit the right of the Commissioner to pursue further remedy.

Code 1950, § 3-219.9; 1958, c. 483; 1966, cc. 9, 702, § 3.1-270; 1986, c. 615; 1994, c. 577; 2008, c. 860.

§ 3.2-4013. Seizure; disposition of seeds.

Any lot of agricultural, vegetable, flower, tree and shrub, lawn and turf seeds, mixtures of such seeds, or screenings sold, offered for sale, or held with intent to sell contrary to the provisions of this article shall be subject to seizure on complaint of the Commissioner to the appropriate court. If the court finds the seeds, mixtures of seeds, or screenings in violation of this article and orders condemnation, such seeds, mixtures of seeds, or screenings shall be denatured, processed, destroyed, relabeled, or otherwise disposed of; provided, that the court first allows the claimant an opportunity to apply for the release of the seeds, mixtures of such seeds, or screenings, or permission to condition or relabel to bring the material into compliance.

Code 1950, § 3-219.10; 1958, c. 483; 1966, cc. 9, 702, § 3.1-272; 1994, c. 577; 2008, c. 860.

§ 3.2-4014. Assessment for variance from guarantee.

A. The Commissioner may make an assessment for variance from guarantee upon the guarantor if any person sells seed if he finds such seed: (i) is not within testing tolerance of the labeled analysis; (ii) contains restricted noxious-weed seeds in excess of the amount claimed on the label; (iii) is not labeled; or (iv) is not labeled in accordance with the provisions of this article. The Commissioner shall make an assessment for variance from guarantee equivalent to one percent of the amount of money the person from whom the sample was taken receives from the sale of the seed or $100 (whichever is greater), upon each lot of seed or portion thereof the Commissioner found in violation, except as provided in subsection B. The Commissioner shall make the assessment for variance from guarantee only on the lot or portion sold after the Commissioner sampled the lot.

B. The Commissioner shall make an assessment for variance from guarantee upon the guarantor of three times the amount the Commissioner calculates pursuant to subsection A if the Commissioner finds that: (i) the seed contains prohibited noxious-weed seeds; (ii) the seed contains restricted noxious-weed seeds in a prohibited amount; (iii) the guarantor has mislabeled such seed as to variety including a component of a mixture; (iv) the person who sold the seed does not have the records required in § 3.2-4006 available for inspection; or (v) the person who sold the seed does not have a laboratory analysis available for inspection.

C. The guarantor on whom the assessment for variance from guarantee is made shall pay the assessment to the Commissioner within 60 days from the date the Commissioner issues the assessment. Any person who fails to pay the assessment within 60 days shall pay a late fee of 10 percent of the assessment to the Commissioner in addition to the assessment. The Commissioner shall revoke the license of any person who fails to pay an assessment.

Code 1950, § 3-219.11; 1958, c. 483; 1966, c. 702, § 3.1-273; 1994, c. 577; 2008, c. 860.

§ 3.2-4015. Prohibitions.

It is unlawful to:

1. Transport, offer for transportation, sell, or offer for sale seed or seed mixtures:

a. Unless the germination test to determine the percentage of germination required by § 3.2-4008 is completed within nine months prior to the month of transportation, sale, or offer for sale, except for the germination test for cool-season lawn and turf seeds or mixtures thereof, which must be completed within 15 months prior to the month of transportation, sale, or offer for sale;

b. Not labeled in compliance with this article, not registered or falsely stated to be registered under § 3.2-4009, or having a false or misleading labeling or claim;

c. If there has been a false or misleading advertisement with regards to the seed;

d. Consisting of, or containing prohibited noxious-weed seeds in any amount;

e. Containing restricted noxious-weed seeds, except as prescribed by regulations;

f. Containing weed seeds in excess of one percent by weight, except as prescribed by regulations;

g. That have been treated and not labeled as required;

h. To which there is affixed names or terms that create a misleading impression as to the kind, kind and variety, history, productivity, quality, or origin of the seed;

i. Represented to be certified, registered, or foundation seed unless it has been produced, processed and labeled in accordance with the procedures and in compliance with regulations of an officially recognized certifying agency;

j. Represented to be a hybrid unless such seed conforms to the definition of a hybrid as defined in this article except those kinds named in regulations adopted by the Board as having agronomic value and flower seed generally defined as hybrids prior to the enactment of subsections G and H of § 3.2-4008 on July 1, 1966 as determined by regulations adopted by the Board;

k. Hybrid seed from a crop that has been inspected in the field by a duly authorized inspector and rejected because of failure to conform to the controlled conditions as specified by regulations;

l. Unless it conforms to the definition of a "lot"; and

m. Unless the variety or hybrid name or designation is the first variety or hybrid name or designation assigned to it by the owner of the variety or hybrid;

2. Transport, offer for transportation, sell, or offer for sale screenings unless labeled as provided in subsection F of § 3.2-4008.

3. Detach, alter, deface, or destroy any label required pursuant to this article or alter or substitute seed in any manner that may defeat the purpose of this article.

4. Disseminate false or misleading advertisement concerning agricultural, vegetable, flower, tree and shrub, lawn and turf seeds, or screenings.

5. Hinder or obstruct the Commissioner in the performance of his duties.

6. Fail to comply with or supply inaccurate information in reply to a stop sale order; remove labels attached to or dispose of seed or screenings held under such order except as specified by the Commissioner.

7. Use the name of the Department or the results of tests and inspections made by the Department for advertising purposes.

8. Use the words "type" or "trace" in lieu of information required by this article.

9. Label and offer for sale seed without keeping complete records as specified in § 3.2-4006.

10. Fail to obtain a license in accordance with § 3.2-4005.

11. Fail to register a lawn and turf seed mixture in accordance with § 3.2-4009.

12. Fail to pay inspection fees in accordance with § 3.2-4010.

13. Sell, offer for sale, or advertise as noncertified a variety if a certificate of plant variety protection has been issued under the Plant Variety Protection Act specifying sale only as a class of certified seed. The guarantor may label seed from a certified lot by variety name when the guarantor uses the seed in a mixture if the guarantor is the owner of the variety or the owner of the variety gives the guarantor approval to use the variety name.

Code 1950, § 3-219.4; 1958, c. 483; 1966, cc. 9, 702, § 3.1-265; 1994, c. 577; 2008, c. 860; 2012, c. 297.

§ 3.2-4016. Exemptions from certain provisions.

A. The provisions of §§ 3.2-4008 and 3.2-4015 and subdivision 6 of § 3.2-4001 shall not apply to:

1. Seed or grain sold or represented to be sold for purposes other than for planting, except as required by subsection F of § 3.2-4008;

2. Seed for conditioning when: (i) consigned to, being transported to, or stored in a processing establishment; and (ii) the accompanying invoice or labeling bears the statement "Seed for conditioning";

3. Any carrier of seed or screenings in the ordinary course of business provided that the carrier does not also produce, condition, or market agricultural, vegetable, flower, tree and shrub, lawn and turf seeds, or screenings; and

4. Untested seed sold on his own premises by a grower who collected gross receipts for selling seeds produced by him of $1,000 or less during the preceding year provided that the seed bears the statement "These seeds have not been tested" on each package or bag.

B. The provisions of § 3.2-4009 shall not apply to any person who sells or offers for sale:

1. Any lawn and turf seed mixture provided he: (i) acted in good faith; and (ii) possessed a statement showing that the lawn and turf seed mixture has been previously registered and approved for sale;

2. Any agricultural, vegetable, flower, tree and shrub, lawn and turf seeds, or screenings that are incorrectly labeled or represented as to kind, variety, or origin and cannot be identified by official examination unless he fails to: (i) obtain an invoice or grower's declaration or other labeling information; or (ii) take other reasonable precautions to insure the identity is that stated; and

3. Any tree or shrub seeds that are incorrectly labeled or represented as to subspecies, locality of collection, or year of collection unless he fails to: (i) obtain an invoice, grower's declaration, or other labeling information; or (ii) take other reasonable precautions to insure the accuracy of these statements as presented on the label.

Code 1950, § 3-219.6; 1958, c. 483; 1966, cc. 9, 702, § 3.1-267; 1994, c. 577; 2008, c. 860.

§ 3.2-4017. Disclaimers, nonwarranties, and limited warranties.

No disclaimer, nonwarranty, or limited warranty used in any invoice, advertising, labeling, nor any other written, printed or graphic matter pertaining to seed may deny or modify any information required by this article or regulations adopted hereunder.

Code 1950, § 3-219.7; 1958, c. 483; 1966, c. 702, § 3.1-268; 1994, c. 577; 2008, c. 860.

§ 3.2-4018. Notice of violations; warning.

A. The Commissioner shall notify the custodian of any seed or screenings in violation of this article. The Commissioner shall forward a copy of notice to the guarantor.

B. Nothing in this article requires that the Commissioner report for prosecution or institute seizure proceedings if the Commissioner considers the violation of the law to be minor. In such cases, the Commissioner may provide a notice of warning in writing.

Code 1950, § 3-219.12; 1958, c. 483; 1966, cc. 9, 702, § 3.1-274; 1994, c. 577; 2008, c. 860.

§ 3.2-4019. Duty of attorney for Commonwealth.

It shall be the duty of each attorney for the Commonwealth to whom any violation of this article is reported to commence proceedings in the appropriate court without delay.

1994, c. 577, § 3.1-275.6; 2008, c. 860.

§ 3.2-4020. Penalty.

Any violation of this article is a Class 3 misdemeanor.

Code 1950, § 3-219.11; 1958, c. 483; 1966, c. 702, § 3.1-273; 1994, c. 577; 2008, c. 860.

Article 2. Certified Seed Board.

§ 3.2-4021. Certified Seed Board; purpose.

The Certified Seed Board is hereby established as a policy board that is a unit of and is within the Cooperative Extension of the Virginia Polytechnic Institute and State University. The purpose of the Certified Seed Board is to establish certification standards for agricultural and vegetable seed.

Code 1950, § 3-220; 1958, c. 30; 1966, c. 702, § 3.1-276; 1980, c. 413; 1985, c. 448; 1992, c. 121; 2008, c. 860.

§ 3.2-4022. Membership; terms; quorum; meetings.

The Certified Seed Board shall have a total membership of seven consisting of two nonlegislative citizen members and five ex officio members. Nonlegislative citizen members shall be appointed as follows: one member of the Virginia Seedsmen's Association and one member of the Virginia Crop Improvement Association shall be appointed by the Governor subject to confirmation by the General Assembly. Such appointments may be made from lists of three names nominated by each such Association and submitted at least 90 days before the expiration of the member's term for which the nominations are being provided. If said organizations fail to provide the nominations at least 90 days before the expiration date pursuant to this section, the Governor may appoint other nominees that meet the criteria provided by this section. The Commissioner, the Director of the Agricultural Experiment Station at Blacksburg, the Director of the Virginia Cooperative Extension, the Head of the Crop and Soil Environmental Sciences Department of the Virginia Polytechnic Institute and State University, and the Dean for the School of Agriculture at Virginia State University or their designees shall serve ex officio with voting privileges. Nonlegislative citizen members of the Certified Seed Board shall be citizens of the Commonwealth.

Nonlegislative citizen members of the Certified Seed Board shall serve for terms of three years. Ex officio members of the Certified Seed Board shall serve terms coincident with their terms of office. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. All members may be reappointed.

The Certified Seed Board shall elect a chairman and vice-chairman from among its membership. A majority of the members shall constitute a quorum. The meetings of the Certified Seed Board shall be held at the call of the chairman or whenever the majority of the members so request.

The Board shall maintain an office in Blacksburg from which place its duties shall be performed.

Code 1950, §§ 3-220, 3-223; 1958, c. 30; 1966, c. 702, §§ 3.1-276, 3.1-279; 1980, c. 413; 1985, c. 448; 1992, c. 121; 2008, c. 860; 2011, cc. 691, 714.

§ 3.2-4023. Compensation and expenses.

The members of the Board shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in § 2.2-2825. Funding for the costs of expenses of the members shall be provided by the Certified Seed Board. Expenses shall be paid by the Treasurer, on warrants of the Comptroller, and issued on vouchers signed by the chairman of the Certified Seed Board or his designee.

Code 1950, § 3-222; 1966, c. 702, § 3.1-278; 2008, c. 860.

§ 3.2-4024. Powers and duties of the Certified Seed Board.

The Certified Seed Board shall have the following powers and duties:

1. To encourage the production and use of certified seed as an economic measure when consistent with a fair profit for the certified seed producer; to advise cooperation of marketing systems for certified seed producers through seed dealers or cooperative warehouses; to control standards and grades and distribution of certified seed stocks other than through private sales by producers; to make all certified seed stocks available for market demands through pooling or other means; to insure to producers uniform percentage sales; and to distribute among producers on a fair basis the carry-over of unsold certified seed stocks for sale and distribution commercially;

2. Adopt regulations that establish standards of health, vigor, purity, and type for the certification of agricultural seed, vegetable seed and of tubers used for planting purposes;

3. Provide for the certification and procurement of agricultural and vegetable seed, and of tubers used for planting purposes;

4. Adopt brands;

5. Select producers of certified seed by general regulation and systematic examination; and

6. Under the supervision of the Director of the Cooperative Extension Service of the Virginia Polytechnic Institute and State University and at the discretion of the Certified Seed Board, appoint a chief of field forces; additional field personnel as necessary; and a full-time administrative secretary who shall have charge of all clerical assistants and all records and official files of the Board.

Code 1950, §§ 3-221, 3-226; 1952, c. 579; 1958, c. 483; 1966, c. 702, §§ 3.1-277, 3.1-282; 1973, c. 401; 1980, c. 413; 2008, c. 860.

§ 3.2-4025. Regulations.

The Certified Seed Board may adopt regulations after a public hearing and investigation. At least 15 days prior to the public hearing, the Certified Seed Board shall publish a notice of the general object, time, and place in a newspaper of general circulation published in the City of Richmond, together with any other dissemination of notice as is deemed advisable.

Code 1950, § 3-224; 1966, c. 702, § 3.1-280; 2008, c. 860.

§ 3.2-4026. Illegal use of word "certified"; who may make certification; standards; penalty.

A. It is unlawful for any person to use the term "certified" or imply certification relative to any agricultural seeds, vegetable seeds, tubers for planting purposes, or plants offered for sale unless such seeds, tubers, or plants have been certified as follows:

1. If the seeds, tubers, or plants were produced in another state or in a foreign country, certification by authorized inspection officials of the place of origin shall be sufficient if accepted by the Board.

2. If the seeds, tubers, or plants were produced in Virginia, certification shall be by the producers under authorization of the Board, its agents, or the Department.

B. Any person who violates this section is guilty of a Class 3 misdemeanor. Each violation shall be a separate offense.

Code 1950, § 3-227; 1966, c. 702, § 3.1-283; 1980, c. 413; 2008, c. 860.

§ 3.2-4027. Certification by Department, Commissioner, or Board not affected.

Nothing contained in this chapter shall be construed to regulate, restrict, or affect the certification of seeds, plants, or other materials by the Department, the Commissioner, or the Board.

Code 1950, § 3-228; 1966, c. 702, § 3.1-284; 2008, c. 860.

Chapter 41. Seed Potatoes [Repealed].

§ 3.2-4100. Repealed.

Repealed by Acts 2012, cc. 803 and 835, cl. 23.

Chapter 41.1. Industrial Hemp.

§ 3.2-4112. Definitions.

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

"Cannabis sativa product" means a product made from any part of the plant Cannabis sativa, including seeds thereof and any derivative, extract, cannabinoid, isomer, acid, salt, or salt of an isomer, whether growing or not, with a concentration of tetrahydrocannabinol that is greater than that allowed by federal law.

"Deal" means to buy industrial hemp grown in compliance with state or federal law and to sell such industrial hemp to a person who (i) processes industrial hemp in compliance with state or federal law or (ii) sells industrial hemp to a person who processes industrial hemp in compliance with state or federal law.

"Dealer" means any person who is registered pursuant to subsection A of § 3.2-4115 to deal in industrial hemp. "Dealer" does not include (i) a grower, (ii) a processor, or (iii) any person who buys industrial hemp for personal use or retail sale in Virginia.

"Dealership" means the location at which a dealer stores or intends to store the industrial hemp in which he deals.

"Grow" means to plant, cultivate, or harvest a plant or crop.

"Grower" means any person registered pursuant to subsection A of § 3.2-4115 to grow industrial hemp.

"Hemp product" means any finished product that is otherwise lawful and that contains industrial hemp, including rope, building materials, automobile parts, animal bedding, animal feed, cosmetics, oil containing an industrial hemp extract, or food or food additives for human consumption.

"Industrial hemp" means any part of the plant Cannabis sativa, including seeds thereof and any derivative, extract, cannabinoid, isomer, acid, salt, or salt of an isomer, whether growing or not, with a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law.

"Process" means to convert industrial hemp into a hemp product.

"Processor" means a person registered pursuant to subsection A of § 3.2-4115 to process industrial hemp.

"Process site" means the location at which a processor processes or intends to process industrial hemp.

"Production field" means the land or area on which a grower is growing or intends to grow industrial hemp.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4113. Production of industrial hemp lawful.

A. It is lawful for a grower or his agent to grow, a dealer or his agent to deal in, or a processor or his agent to process industrial hemp in the Commonwealth for any lawful purpose. No grower or his agent, dealer or his agent, or processor or his agent shall be prosecuted under § 18.2-247, 18.2-248, 18.2-248.01, 18.2-248.1, 18.2-250, or 18.2-250.1 for the possession, growing, dealing, or processing of industrial hemp. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2 or the Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negate any exception, excuse, proviso, or exemption contained in this chapter or the Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be on the defendant.

B. Nothing in this chapter shall be construed to authorize any person to violate any federal law or regulation.

C. No person shall be prosecuted under § 18.2-247, 18.2-248, 18.2-248.01, 18.2-248.1, 18.2-250, or 18.2-250.1 for the involuntary growth of industrial hemp through the inadvertent natural spread of seeds or pollen as a result of proximity to a production field, dealership, or process site.

2015, cc. 158, 180; 2016, cc. 61, 170; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4114. Regulations.

The Board may adopt regulations pursuant to this chapter as necessary to register persons to grow, deal in, or process industrial hemp or implement the provisions of this chapter.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4114.1. Repealed.

Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

§ 3.2-4114.2. Authority of Commissioner; notice to law enforcement; report.

A. The Commissioner may charge a nonrefundable fee not to exceed $50 for any application for registration or renewal of registration allowed under this chapter. The Commissioner may charge a nonrefundable fee for the tetrahydrocannabinol testing allowed under this chapter. All fees collected by the Commissioner shall be deposited in the state treasury.

B. The Commissioner shall notify the Superintendent of State Police of the locations of all industrial hemp production fields, dealerships, and process sites.

C. The Commissioner shall forward a copy or appropriate electronic record of each registration issued by the Commissioner under this chapter to the chief law-enforcement officer of the county or city where industrial hemp will be grown, dealt, or processed.

D. The Commissioner shall be responsible for monitoring the industrial hemp grown, dealt, or processed by a person registered pursuant to subsection A of § 3.2-4115 and shall provide for random testing of the industrial hemp, at the cost of the grower, dealer, or processor, for compliance with tetrahydrocannabinol limits and for other appropriate purposes established pursuant to § 3.2-4114. In addition to any routine inspection and sampling, the Commissioner may inspect and sample the industrial hemp at any production field, dealership, or process site during normal business hours without advance notice if he has reason to believe a violation of this chapter is occurring or has occurred.

E. The Commissioner may require a grower, dealer, or processor to destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, in which the dealer deals, or that the processor processes that has been tested and is found to have a concentration of tetrahydrocannabinol that is greater than that allowed by federal law, or any Cannabis sativa product that the processor produces.

F. Notwithstanding the provisions of subsection E, if the provisions of subdivisions 1 and 2 are included in a plan that (i) is submitted by the Department pursuant to § 10113 of the federal Agriculture Improvement Act of 2018, P.L. 115-334, (ii) requires the Department to monitor and regulate the production of industrial hemp in the Commonwealth, and (iii) is approved by the U.S. Secretary of Agriculture:

1. The Commissioner may require a grower, dealer, or processor to destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, in which the dealer deals, or that the processor processes that has been tested and is found to have a concentration of tetrahydrocannabinol that is greater than 0.6 percent.

2. If such a test of Cannabis sativa indicates a concentration of tetrahydrocannabinol that is greater than 0.6 percent but less than one percent, the Commissioner shall allow the grower, dealer, or processor to request that the Cannabis sativa be sampled and tested again before he requires its destruction.

G. The Commissioner shall advise the Attorney General of the United States and the Superintendent of State Police or the chief law-enforcement officer of the appropriate county or city when, with a culpable mental state greater than negligence, a grower grows, a dealer deals in, or a processor processes any Cannabis sativa with a concentration of tetrahydrocannabinol that is greater than that allowed by federal law or a processor produces a Cannabis sativa product.

H. The Commissioner may pursue any permits or waivers from the U.S. Drug Enforcement Administration or appropriate federal agency that he determines to be necessary for the advancement of the industrial hemp industry.

I. The Commissioner may establish a corrective action plan to address a negligent violation of any provision of this chapter.

2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4115. Issuance of registrations.

A. The Commissioner shall establish a registration program to allow a person to grow, deal in, or process industrial hemp in the Commonwealth.

B. Any person seeking to grow, deal in, or process industrial hemp in the Commonwealth shall apply to the Commissioner for a registration on a form provided by the Commissioner. At a minimum, the application shall include:

1. The name and mailing address of the applicant;

2. The legal description and geographic data sufficient for locating (i) the land on which the applicant intends to grow industrial hemp, (ii) the site at which the applicant intends to deal in industrial hemp, or (iii) the site at which the applicant intends to process industrial hemp. A registration shall authorize industrial hemp growth, dealing in, or processing only at the location specified in the registration;

3. A signed statement indicating whether the applicant has ever been convicted of a felony. A person with a prior felony drug conviction within 10 years of applying for a registration under this section shall not be eligible to be registered;

4. Written consent allowing the sheriff's office, police department, or Department of State Police, if a registration is ultimately issued to the applicant, to enter the premises on which the industrial hemp is grown, dealt in, or processed to conduct physical inspections of the industrial hemp and to ensure compliance with the requirements of this chapter. No more than two physical inspections shall be conducted under this subdivision per year, unless a valid search warrant for an inspection has been issued by a court of competent jurisdiction;

5. Written consent allowing the Commissioner or his designee to enter the premises on which the industrial hemp is grown, dealt in, or processed to conduct inspections and sampling of the industrial hemp to ensure compliance with the requirements of this chapter;

6. A statement of the approximate square footage or acreage of the location he intends to use as a production field, dealership, or process site;

7. Any other information required by the Commissioner; and

8. The payment of a nonrefundable application fee, in an amount set by the Commissioner not to exceed $50.

C. Each registration issued pursuant to this section shall be valid for a period of one year from the date of issuance and may be renewed in successive years. Each annual renewal shall require the payment of a registration renewal fee, in an amount set by the Commissioner not to exceed $50.

D. All records, data, and information filed in support of a registration application submitted pursuant to this section shall be considered proprietary and excluded from the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4116. Registration conditions.

A. A person shall obtain a registration pursuant to subsection A of § 3.2-4115 prior to growing, dealing in, or processing any industrial hemp in the Commonwealth.

B. A person issued a registration pursuant to subsection A of § 3.2-4115 shall:

1. Maintain records that reflect compliance with this chapter and with all other state or federal laws regulating the growing, dealing in, or processing of industrial hemp;

2. Retain all industrial hemp growing, dealing, or processing records for at least three years;

3. Allow his production field, dealership, or process site to be inspected by and at the discretion of the Commissioner or his designee, the Department of State Police, or the chief law-enforcement officer of the locality in which the production field or dealership or process site exists;

4. Allow the Commissioner or his designee to monitor and test the grower's, dealer's, or processor's industrial hemp for compliance with tetrahydrocannabinol levels and for other appropriate purposes established pursuant to § 3.2-4114, at the cost of the grower, dealer, or processor; and

5. If required by the Commissioner, destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, the dealer deals in, or the processor processes that has been tested and, following any re-sampling and retesting as authorized pursuant to the provisions of § 3.2-4114.2, is found to have a concentration of tetrahydrocannabinol that is greater than that allowed by federal law, or any Cannabis sativa product that the processor produces.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4117. Repealed.

Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

§ 3.2-4118. Forfeiture of industrial hemp grower, dealer, or processor registration; violations.

A. The Commissioner shall deny the application, or suspend or revoke the registration, of any person who, with a culpable mental state greater than negligence, violates any provision of this chapter. The Commissioner shall provide reasonable notice of an informal fact-finding conference pursuant to § 2.2-4019 to any person in connection with the denial, suspension, or revocation of a registration.

B. If a registration is revoked as the result of an informal hearing, the decision may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The grower, dealer, or processor may appeal a final order to the circuit court in accordance with the Administrative Process Act.

C. A person issued a registration pursuant to subsection A of § 3.2-4115 who negligently (i) fails to provide a description and geographic data sufficient for locating his production field, dealership, or process site; (ii) grows, deals in, or processes Cannabis sativa with a tetrahydrocannabinol concentration greater than that allowed by federal law; or (iii) produces a Cannabis sativa product shall comply with any corrective action plan established by the Commissioner in accordance with the provisions of subsection E.

D. A person who grows, deals in, or processes industrial hemp and who negligently fails to register pursuant to subsection A of § 3.2-4115 shall comply with any corrective action plan established by the Commissioner in accordance with the provisions of subsection E.

E. A corrective action plan established by the Commissioner in response to a negligent violation of a provision of this chapter shall identify a reasonable date by which the person who is the subject of the plan shall correct the negligent violation and shall require such person to report periodically for not less than two calendar years to the Commissioner on the person's compliance with the provisions of this chapter.

F. No person who negligently violates the provisions of this chapter three times in a five-year period shall be eligible to grow, deal in, or process industrial hemp for a period of five years beginning on the date of the third violation.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4119. Eligibility to receive tobacco settlement funds.

Industrial hemp growers, dealers, or processors registered under this chapter may be eligible to receive funds from the Tobacco Indemnification and Community Revitalization Fund established pursuant to § 3.2-3106.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654.

§ 3.2-4120. Repealed.

Repealed by Acts 2018, cc. 689 and 690, cl. 2.


Chapter 42. Implementation of Tobacco Master Settlement Agreement.

Article 1. Requirements for Tobacco Product Manufacturers.

§ 3.2-4200. Definitions.

As used in this article:

"Adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the Master Settlement Agreement.

"Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns," "is owned," and "ownership" mean ownership of an equity interest, or the equivalent thereof, of 10 percent or more, and the term "person" means an individual, partnership, committee, association, corporation or any other organization or group of persons.

"Allocable share" means Allocable Share as that term is defined in the Master Settlement Agreement.

"Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (i) any roll of tobacco wrapped in paper or in any substance not containing tobacco; (ii) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (iii) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in clause (i) of this definition. The term "cigarette" includes "roll-your-own" tobacco, which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of "cigarette," 0.09 ounces of "roll-your-own" tobacco shall constitute one individual "cigarette."

"Master Settlement Agreement" means the settlement agreement and related documents entered into on November 23, 1998, by the Commonwealth and leading United States tobacco product manufacturers.

"Qualified escrow fund" means an escrow arrangement with a federally or state-chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1 billion where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the funds' principal except as consistent with subsection B of § 3.2-4201.

"Released claims" means Released Claims as that term is defined in the Master Settlement Agreement.

"Releasing parties" means Releasing Parties as that term is defined in the Master Settlement Agreement.

"Tobacco product manufacturer" means an entity that after the date of enactment of this act directly (and not exclusively through any affiliate):

1. Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of subsection II (mm) of the Master Settlement Agreement and that pays the taxes specified in subsection II (z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);

2. Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or

3. Becomes a successor of an entity described in subdivision 1 or 2 of this definition.

The term "Tobacco Product Manufacturer" shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within any of subdivisions 1, 2, and 3 of this definition.

"Units sold" means the number of individual cigarettes sold in the Commonwealth by the applicable tobacco product manufacturer, whether directly or through a distributor, retailer or similar intermediary or intermediaries, during the year in question, as measured by excise taxes collected by the Commonwealth on packs (or "roll-your-own" tobacco containers) bearing the excise tax stamp of the Commonwealth.

1999, cc. 714, 754, § 3.1-336.1; 2008, c. 860.

§ 3.2-4201. Requirements on tobacco product manufacturers; escrow of funds; civil penalties for violations.

A. Any tobacco product manufacturer selling cigarettes to consumers within the Commonwealth, whether directly or through a distributor, retailer or similar intermediary or intermediaries, after July 1, 1999, shall do one of the following:

1. Become a participating manufacturer (as that term is defined in section II (jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or

2. Place into a qualified escrow fund by April 15 of the year following the year in question the following amounts (as such amounts are adjusted for inflation):

YearAmount per unit sold in such year

(except for 1999, the amount per

unit sold after July 1, 1999)

1999$.0094241

2000$.0104712

each of 2001 and 2002
$.0136125

each of 2003 through 2006
$.0167539

each of 2007 and each year thereafter
$.0188482

B. A tobacco product manufacturer that places funds into escrow pursuant to subdivision A 2 shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:

1. To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the Commonwealth or any releasing party located or residing in the Commonwealth. Funds shall be released from escrow under this subdivision (i) in the order in which they were placed into escrow and (ii) only to the extent and at the time necessary to make payments required under such judgment or settlement;

2. To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in this Commonwealth in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement, including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or

3. To the extent not released from escrow under subdivisions 1 or 2, funds shall be released from escrow and revert back to such tobacco product manufacturer 25 years after the date on which they were placed into escrow.

C. Each tobacco product manufacturer that elects to place funds into escrow pursuant to subdivision A 2 shall annually certify to the Attorney General that it is in compliance with that subdivision. The Attorney General may bring a civil action on behalf of the Commonwealth against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:

1. Be required within 15 days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of this subsection, may impose a civil penalty in an amount not to exceed five percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 100 percent of the original amount improperly withheld from escrow;

2. In the case of a knowing violation, be required within 15 days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of this subsection, may impose a civil penalty in an amount not to exceed 15 percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 300 percent of the original amount improperly withheld from escrow; and

3. In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the Commonwealth (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two years.

Each failure to make an annual deposit required under this section shall constitute a separate violation.

1999, cc. 714, 754, § 3.1-336.2; 2004, c. 1029; 2005, cc. 4, 870; 2008, c. 860.

Article 2. Escrow Funds Contributed to Commonwealth.

§ 3.2-4202. Assignment to the Commonwealth of rights to tobacco manufacturer escrow funds; contribution to the Commonwealth.

Notwithstanding the provisions of subsection B of § 3.2-4201, a tobacco product manufacturer who elects to place funds into escrow pursuant to subdivision A 2 of § 3.2-4201 may make an irrevocable assignment of its interest in the funds to the benefit of the Commonwealth. Such assignment shall be permanent and shall apply to all funds in the subject escrow account at the time of assignment or that may subsequently come into such account, including those deposited into the escrow account prior to the assignment being executed, those deposited into the escrow account after the assignment is executed, and interest or other appreciation on such funds. Any interest or other appreciation withdrawn from the subject escrow account prior to the time of assignment shall not be a part of the assignment. The tobacco product manufacturer, the Attorney General, and the financial institution where the escrow account is maintained shall make such amendments to the qualified escrow account agreement, title to the account, and the account itself as may be necessary to effectuate an irrevocable assignment of rights executed pursuant to this section or a withdrawal or payment of funds from the escrow account pursuant to § 3.2-4203. An assignment of rights executed pursuant to this section shall be in writing, signed by a duly authorized representative of the tobacco product manufacturer making the assignment, and shall become effective upon delivery of the assignment to the Attorney General and the financial institution where the escrow account is maintained.

2005, cc. 899, 901, § 3.1-336.2:1; 2008, c. 860.

§ 3.2-4203. Withdrawal of escrow funds assigned and contributed to the Commonwealth.

Notwithstanding the provisions of subsection B of § 3.2-4201, any escrow funds assigned and contributed to the Commonwealth pursuant to § 3.2-4202 shall be withdrawn by the Commonwealth by request of the State Treasurer to the Attorney General and upon approval of the Attorney General. The State Treasurer shall make such request as soon as practicable and such escrow funds withdrawn shall be deposited into the Virginia Health Care Fund established under § 32.1-366.

After such withdrawal, any remaining escrow funds shall be withdrawn under the withdrawal procedures provided in this section, and the withdrawn escrow funds shall be deposited into the Virginia Health Care Fund. Nothing in this article shall be construed to relieve a tobacco product manufacturer from any past, current, or future obligations it may have pursuant to Article 1 (§ 3.2-4200 et seq.) or 3 (§ 3.2-4204 et seq.).

2005, cc. 899, 901, § 3.1-336.2:2; 2008, c. 860; 2016, c. 305.

Article 3. Enforcement of Requirements for Tobacco Product Manufacturers.

§ 3.2-4204. Definitions.

As used in this article:

"Brand family" means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, "menthol," "lights," "kings," and "100s" and includes any brand name alone or in conjunction with any other word, trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.

"Commissioner" means the Tax Commissioner of the Department of Taxation.

"Nonparticipating manufacturer" means any tobacco product manufacturer that is not a participating manufacturer.

"Participating manufacturer" shall have the meaning provided in section II (jj) of the Master Settlement Agreement.

"Stamping agent" means (i) a person who is authorized by the Tax Commissioner pursuant to § 58.1-1011 to affix Virginia tax stamps to packages, packs, cartons, or other containers of cigarettes; or (ii) any person who is required to pay the excise tax imposed on cigarettes pursuant to § 58.1-1001.

Terms defined in § 3.2-4200 shall have the same meaning when used in this article.

2003, c. 798, § 3.1-336.3; 2004, c. 1029; 2006, c. 674; 2008, c. 860.

§ 3.2-4205. Certifications.

A. Every tobacco product manufacturer whose cigarettes are sold in the Commonwealth whether directly or through a distributor, retailer or similar intermediary or intermediaries shall execute and deliver on a form prescribed by the Attorney General, requesting such information as the Attorney General deems reasonably necessary to enable him to make the determinations required in § 3.2-4206, a certification to the Attorney General no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer either: (i) is a participating manufacturer and has made all payments calculated by the independent auditor to be due from it under the Master Settlement Agreement, except to the extent it is disputing any of such payments; or (ii) is in full compliance with Article 1 (§ 3.2-4200 et seq.) of this chapter.

B. A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

C. A nonparticipating manufacturer shall include in its certification a complete list of all of its brand families (i) separately listing brand families of cigarettes and the number of units sold for each brand family that were sold in the Commonwealth during the preceding calendar year, (ii) that have been sold in the Commonwealth at any time during the current calendar year, (iii) indicating by an asterisk, any brand family sold in the Commonwealth during the preceding calendar year that is no longer being sold in the Commonwealth as of the date of such certification, and (iv) identifying by name and address, any other manufacturer of such brand families in the preceding calendar year. The nonparticipating manufacturer shall update such list 30 days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.

D. In the case of a nonparticipating manufacturer, such certification shall further certify:

1. That such nonparticipating manufacturer is registered to do business in the Commonwealth or has appointed a resident agent for service of process and provided notice thereof as required by § 3.2-4208;

2. That such nonparticipating manufacturer has (i) established and continues to maintain a qualified escrow fund as that term is defined in Article 1 (§ 3.2-4200 et seq.) of this chapter; and (ii) executed a qualified escrow agreement that conforms to the requirements in Article 1 of this chapter;

3. That such nonparticipating manufacturer is in full compliance with Article 1 (§ 3.2-4200 et seq.) of this chapter and this article, and any regulations promulgated pursuant thereto;

4. The (i) name, address and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund required pursuant to Article 1 (§ 3.2-4200 et seq.) of this chapter; (ii) account number of such qualified escrow fund and subaccount number for the Commonwealth; (iii) amount such nonparticipating manufacturer placed in such fund for cigarettes sold in the Commonwealth during the preceding calendar year, the date or dates and amount of each such deposit, and verification of those dates and amounts of deposits as may be deemed necessary by the Attorney General; and (iv) amounts of and dates of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from such fund or from any other qualified escrow fund into which it has at any time made escrow payments pursuant to Article 1 of this chapter; and

5. In the case of a nonparticipating manufacturer located outside of the United States, that it has provided a declaration on a form prescribed by the Attorney General from each of its importers into the United States of any of its brand families to be sold in Virginia that such importer accepts joint and several liability with the nonparticipating manufacturer for all escrow deposits due in accordance with § 3.2-4201, for all penalties assessed in accordance with § 3.2-4201, and for payment of all costs and attorney fees imposed in accordance with this article. Such declaration shall appoint for the declarant a resident agent for service of process in Virginia in accordance with subsection A of § 3.2-4208.

E. A tobacco product manufacturer may not include a brand family in its certification unless (i) in the case of a participating manufacturer, such participating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement; and (ii) in the case of a nonparticipating manufacturer, said nonparticipating manufacturer affirms that the brand family is to be deemed to be its cigarettes for purposes of Article 1 (§ 3.2-4200 et seq.) of this chapter. Nothing in this section shall be construed as limiting or otherwise affecting the Commonwealth's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement or for purposes of Article 1 of this chapter.

F. The tobacco product manufacturers shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

2003, c. 798, § 3.1-336.4; 2006, c. 31; 2008, cc. 758, 860.

§ 3.2-4206. Directory of cigarettes approved for stamping and sale.

A. Not later than October 1, 2003, the Attorney General shall develop and publish on its website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of § 3.2-4205 and all brand families that are listed in such certifications (the Directory), except as noted below.

1. The Attorney General shall not include or retain in such Directory the name or brand families of (i) any participating manufacturer that fails to provide the required certification or to make a payment calculated by the independent auditor to be due from it under the Master Settlement Agreement except to the extent that it is disputing such payment, or (ii) any nonparticipating manufacturer that fails to provide the required certification or whose certification the Attorney General determines is not in compliance with subsections A through D of § 3.2-4205, unless the Attorney General has determined that such violation has been cured to his satisfaction.

2. Neither a tobacco product manufacturer nor brand family shall be included or retained in the Directory if the Attorney General concludes that (i) in the case of a nonparticipating manufacturer all escrow payments required pursuant to Article 1 (§ 3.2-4200 et seq.) of this chapter for any period for any brand family, whether or not listed by such nonparticipating manufacturer, have not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General, (ii) any outstanding final judgments, including interest thereon, for violations of Article 1 of this chapter have not been fully satisfied for such brand family and such manufacturer, (iii) in the case of a nonparticipating manufacturer or a tobacco product manufacturer that became a participating manufacturer after the Master Settlement Agreement execution date, as defined by section II (aa) of the Master Settlement Agreement, by reason of the business plan, business history, trade connections, or compliance and payment history under the Master Settlement Agreement or in Virginia or any other state, or the business history, trade connections or compliance and payment history under the Master Settlement Agreement or in Virginia or any other state of any of the principals thereof, the nonparticipating manufacturer or such tobacco product manufacturer fails to provide reasonable assurance that it will comply with the requirements of this article or of Article 1 (§ 3.2-4200 et seq.) of this chapter, or (iv) the manufacturer has knowingly failed to disclose any material information required or knowingly made any material false statement in the certification of any supporting information or documentation provided.

As used in this subdivision, reasonable assurances may include information and documentation establishing to the satisfaction of the Attorney General that a failure to pay in Virginia or elsewhere was the result of a good faith dispute over the payment obligation.

B. The Attorney General shall update the Directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand families to keep the Directory in conformity with the requirements of this article.

C. Notwithstanding the provisions of subsection A, in the case of any nonparticipating manufacturer who has established a qualified escrow account pursuant to Article 1 (§ 3.2-4200 et seq.) of this chapter that has been approved by the Attorney General, or in the case of any participating manufacturer, the Attorney General may not remove such manufacturer or its brand families from the Directory unless the manufacturer has been given at least 30 days' notice of such intended action. For purposes of this section, notice shall be deemed sufficient if it is sent either electronically or by first-class mail to an electronic mail address or postal mailing address, as the case may be, provided by the manufacturer in its most recent certification filed pursuant to § 3.2-4205. The notified nonparticipating manufacturer shall have 30 days from receipt of the notice to either come into compliance with the applicable requirements or, in the alternative, secure a temporary injunction against removal from the Directory. For purposes of a temporary injunction sought pursuant to this subsection, loss of the ability to sell tobacco products as a result of removal from the Directory may be deemed to constitute irreparable harm.

D. Every stamping agent shall provide and update as necessary an electronic mail address to the Attorney General for the purpose of receiving any notifications as may be required by this article.

2003, c. 798, § 3.1-336.5; 2008, cc. 758, 860.

§ 3.2-4206.01. List of persons ineligible to be authorized holders.

A. The Attorney General shall develop and publish on its website a list of individuals who are ineligible to be authorized holders as defined in § 58.1-1000. The Attorney General shall update the list as necessary to add names of individuals who are no longer eligible to be authorized holders. Upon request, the Office of the Executive Secretary of the Supreme Court shall provide the Attorney General with assistance to ensure that the requirements of this section are met.

B. Any attorney for the Commonwealth, law-enforcement officer, or other person may submit a request to the Attorney General that a person be included on the list and shall submit a certified court order of the conviction that makes the person ineligible to be an authorized holder of cigarettes.

C. Nothing in this section shall impose an affirmative duty on the Attorney General to identify persons to be included on the list who are ineligible to be authorized holders of cigarettes due to a conviction in another state, in the absence of a request received from an attorney for the Commonwealth, law-enforcement officer, or other person.

D. No liability shall be imposed upon the Attorney General for any omissions or the incorrect inclusion of any individual on the listing required under subsection A. No liability shall be imposed upon any attorney for the Commonwealth or law-enforcement official who provides information to the Attorney General in accordance with subsection B. This provision shall not be construed to grant immunity for gross negligence or willful misconduct.

2015, cc. 738, 754.

§ 3.2-4206.1. Bond requirement for newly qualified and elevated-risk nonparticipating manufacturers.

A. Notwithstanding any other provision of law, if a newly qualified nonparticipating manufacturer is to be listed in the Virginia Tobacco Directory (the Directory), or if the Attorney General reasonably determines that any nonparticipating manufacturer who has filed a certification pursuant to § 3.2-4205 poses an elevated risk for noncompliance with this article or with Article 1 (§ 3.2-4200 et seq.), neither such nonparticipating manufacturer nor any of its brand families shall be included in the Directory unless and until such nonparticipating manufacturer, or its United States importer that undertakes joint and several liability for the manufacturer's performance in accordance with § 3.2-4208.1, has posted a bond in accordance with this section.

B. The bond shall be posted by corporate surety located within the United States in an amount equal to the greater of $50,000 or the amount of escrow the manufacturer in either its current or predecessor form was required to deposit as a result of its highest calendar year's sales in Virginia. The bond shall be written in favor of the Commonwealth of Virginia and shall be conditioned on the performance by the nonparticipating manufacturer, or its United States importer that undertakes joint and several liability for the manufacturer's performance in accordance with subsection A of § 3.2-4201, of all of its duties and obligations under this article and Article 1 (§ 3.2-4200 et seq.) during the year in which the certification is filed and the next succeeding calendar year.

C. A nonparticipating manufacturer may be deemed to pose an elevated risk for noncompliance with this article or Article 1 (§ 3.2-4200 et seq.) if:

1. The nonparticipating manufacturer or any affiliate thereof has underpaid an escrow obligation with respect to any state at any time during the calendar year or within the past three calendar years unless (i) the manufacturer did not make underpayment knowingly or recklessly and the manufacturer promptly cured the underpayment within 180 days of notice of it, or (ii) the underpayment or lack of payment is the subject of a good faith dispute as documented to the satisfaction of the Attorney General and the underpayment is cured within 180 days of entry of a final order establishing the amount of the required escrow payment;

2. Any state has removed the manufacturer or its brands or brand families or an affiliate or any of the affiliate's brands or brand families from the state's tobacco directory for noncompliance with the state law at any time during the calendar year or within the past three calendar years; or

3. Any state has litigation pending against, or an unsatisfied judgment against, the manufacturer or any affiliate thereof for escrow or for penalties, costs, or attorney fees related to noncompliance with state escrow laws.

D. As used in this section "newly qualified nonparticipating manufacturer" means a nonparticipating manufacturer that has not previously been listed in the Virginia Tobacco Directory. Such manufacturers may be required to post a bond in accordance with this section for the first three years of their listing, or longer if they have been determined to pose an elevated risk for noncompliance.

2008, c. 758, § 3.1-336.5:1; 2011, c. 297.

§ 3.2-4207. Prohibition against stamping or sale or import of cigarettes not in the Directory.

A. It shall be unlawful for any person (i) to affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the Directory, or (ii) to sell, offer or possess for sale in the Commonwealth, ship or otherwise distribute into or within the Commonwealth, or import for personal consumption into the Commonwealth, cigarettes of a tobacco product manufacturer or brand family not included in the Directory. For purposes of this article a person shall be deemed to have received notice that cigarettes of a tobacco product manufacturer or brand family are not included in the Directory at the time the Attorney General's website fails to list any such cigarettes in the Directory or at the time any such cigarettes are removed from the Directory. A person purchasing cigarettes for resale shall not be in violation of this section (a) if at the time of such purchase the manufacturer and brand families of the cigarettes are included in the Directory and the cigarettes are otherwise lawfully stamped and sold within 45 days of the date such manufacturer and brand families were removed from the Directory or (b) if, in the case of a retailer, the cigarettes are sold or delivered to consumers within 45 days after receipt of delivery of such cigarettes from a wholesaler, which cigarettes otherwise have been lawfully purchased from the same wholesaler. A tobacco product manufacturer that is otherwise in compliance with the requirements of this chapter may, for reasons satisfactory to the Attorney General, request removal of itself, or cigarettes in a brand family that it manufactures or has manufactured, from the Directory. A person purchasing cigarettes for resale shall not be in violation of this section if (1) at the time of such purchase, the manufacturer and brand families of the cigarettes are included in the Directory and the cigarettes are otherwise lawfully stamped and sold within 60 days of the date such cigarettes were removed from the Directory or (2) in the case of a retailer, the cigarettes are sold or delivered to consumers within 60 days after receipt of delivery of such cigarettes from a wholesaler and the cigarettes have been lawfully purchased from the same wholesaler. The updates to the Directory required by subsection B of § 3.2-4206 shall contain a notation indicating such voluntary removal. For purposes of this subsection, "reasons satisfactory to the Attorney General" shall include cessation of the business operations of the tobacco products manufacturer and voluntary discontinuance of a product line or brand family.

B. Any manufacturer, wholesaler or retail dealer selling cigarettes for resale of a manufacturer or brand family that has been removed from the Directory shall notify the purchaser of such cigarettes of that fact at the time of delivery of such cigarettes. Unless otherwise provided by contract or purchase agreement, a purchaser shall receive a refund from such manufacturer, wholesaler or retail dealer from whom the cigarettes were purchased of the purchase price of any cigarettes that are the product of a manufacturer or brand family removed from the Directory. Any failure of such manufacturer, wholesaler or retail dealer to provide the purchaser with the refund required under this subsection shall (i) create a cause of action against such manufacturer, wholesaler or retail dealer in favor of the purchaser and (ii) subject such manufacturer, wholesaler or retail dealer to a civil penalty of $500 for each violation, which shall be assessed by the Commissioner and payable to the Literary Fund.

C. The Commissioner shall, by regulation or guidelines, provide for the refund of the purchase price of tax stamps that have been lawfully affixed to cigarettes that may not be sold pursuant to the provisions of this section.

2003, c. 798, § 3.1-336.6; 2008, c. 860; 2011, c. 846.

§ 3.2-4208. Agent for service of process.

A. Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in the Commonwealth as a foreign corporation or business entity shall, as a condition precedent to having its brand families listed or retained in the Directory, appoint and continually engage without interruption the services of an agent in the Commonwealth to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this article or Article 1 (§ 3.2-4200 et seq.) of this chapter may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number and proof of the appointment and availability of such agent to the satisfaction of the Commissioner and Attorney General. Any nonparticipating manufacturer located outside of the United States shall, as an additional condition precedent to having its brand families listed or retained in the Directory, cause each of its importers into the United States of any of its brand families to be sold in Virginia to appoint and continually engage without interruption the services of an agent in the Commonwealth in accordance with the provisions of this section. All obligations of a nonparticipating manufacturer imposed by this section with respect to appointment of its agent shall likewise apply to such importers with respect to appointment of their agents.

B. The nonparticipating manufacturer shall provide notice to the Commissioner and Attorney General 30 calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days prior to the termination of an existing agency appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer shall notify the Commissioner and Attorney General of said termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.

C. Any nonparticipating manufacturer whose products are sold in this state, without appointing or designating an agent as herein required, shall be deemed to have appointed the Secretary of the Commonwealth as such agent and may be proceeded against in courts of the Commonwealth by service of process upon the Secretary of the Commonwealth. The appointment of the Secretary of the Commonwealth as such agent shall not satisfy the condition precedent to having its brand families listed or retained in the Directory.

2003, c. 798, § 3.1-336.7; 2008, cc. 758, 860.

§ 3.2-4208.1. Joint and several liability.

For each nonparticipating manufacturer located outside the United States, each importer into the United States of any such nonparticipating manufacturer's brand families that are sold in Virginia shall bear joint and several liability with such nonparticipating manufacturer for deposit of all escrow due under § 3.2-4201, payment of all penalties imposed in accordance with § 3.2-4201, and payment of all costs and attorney fees imposed in accordance with this article.

2008, c. 758, § 3.1-336.7:1.

§ 3.2-4209. Reporting of information.

A. Not later than 20 days after the end of each calendar quarter, and more frequently if so directed by the Commissioner, each stamping agent shall submit to the Attorney General such information as the Attorney General requires to facilitate compliance with this article, including, but not limited to, a list by brand family of the total number of cigarettes for which the stamping agent affixed stamps during the previous calendar quarter or otherwise paid the tax due for such cigarettes. The Attorney General may allow such information to be filed electronically. For roll-your-own tobacco, in lieu of the number of cigarettes sold, the Attorney General shall require that the stamping agent submit the total quantity in ounces, by brand family, of all such roll-your-own tobacco in accordance with the invoice accompanying each shipment he initiates, as provided in subsection D of § 58.1-1003.2, or for which the stamping agent otherwise paid the tax due for such roll-your-own tobacco. The stamping agent shall maintain, and make available to the Commissioner and Attorney General, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the Attorney General for a period of five years.

B. In addition to the information required to be submitted pursuant to subsection A or any other provision of law, the Attorney General may require a stamping agent, distributor or tobacco product manufacturer to submit any additional information including, but not limited to, samples of the packaging or labeling of each brand family, as is necessary to enable the Attorney General to determine whether a tobacco product manufacturer has complied, is in compliance, and will continue in compliance with this article and Article 1 (§ 3.2-4200 et seq.) of this chapter.

C. On a quarterly basis, and upon request made in writing by a tobacco product manufacturer, a stamping agent shall provide to the requesting tobacco product manufacturer the total number of cigarettes, by brand family, which the stamping agent reported to the Attorney General pursuant to subsection A, provided that such information provided by the stamping agent to a tobacco manufacturer shall be limited to the brand families of that manufacturer as listed in the Directory established pursuant to § 3.2-4206. A stamping agent receiving a request pursuant to this subsection shall provide the requested information within 30 days from receipt of the request.

2003, c. 798, § 3.1-336.8; 2006, cc. 31, 674, 768; 2008, cc. 758, 860; 2013, c. 381.

§ 3.2-4209.1. Additional information required.

A. When used in this section, the term "applicable returns" means the following returns or reports relating to cigarettes that are filed or required to be filed with the Alcohol and Tobacco Tax and Trade Bureau, United States Department of Treasury, after the effective date of this section; Alcohol and Tobacco Tax and Trade Bureau Form 5000.24, Alcohol and Tobacco Tax and Trade Bureau Form 5210.5 and Alcohol and Tobacco Tax and Trade Bureau Form 5220.6 as well as any successor returns or reports intended to replace Forms 5000.24, 5210.5, or 5220.6.

B. As a condition of selling cigarettes in the Commonwealth, every tobacco product manufacturer, as defined in § 3.2-4200, whose cigarettes are to be sold in the Commonwealth whether directly or through a distributor, importer, retailer, or similar intermediary or intermediaries shall, at the election of such tobacco product manufacturer, either:

(1) submit to the Attorney General a true and correct copy of each and every applicable return of such tobacco product manufacturer; or

(2) submit to the United States Treasury a request or consent under Internal Revenue Code section 6103 (c) authorizing the Alcohol and Tobacco Tax and Trade Bureau to disclose the applicable returns of such manufacturer to the Attorney General.

A foreign tobacco product manufacturer whose cigarettes are imported into the United States by an importer or importers shall submit, or shall cause each of its importers to submit, to the Attorney General each and every applicable return that includes any information about cigarettes of that foreign tobacco product manufacturer imported into the United States.

The Attorney General shall not disclose any applicable returns or any information contained therein, except as provided in subsection C, notwithstanding any statute of this state that otherwise authorizes or requires the disclosure of information by the Attorney General.

C. The Attorney General's Office shall compile data on cigarette shipments from the applicable returns and shall share such data with other states that are signatories to the Master Settlement Agreement, as defined in § 3.2-4200, provided that such states impose protections against disclosure of the applicable returns, or any information from applicable returns, that are equivalent to the protections provided under subsection B. No other disclosures of the applicable returns, or of information from the applicable returns, may be made by the Attorney General.

D. A tobacco product manufacturer who does not comply with the requirements of subsection B shall, after 30 days' notice by the Commonwealth to such tobacco product manufacturer of the compliance failure, lose its authority to sell cigarettes in the Commonwealth unless such tobacco product manufacturer has brought itself into compliance by the end of the 30-day period.

E. Any tobacco manufacturer or importer who intentionally provides any applicable return containing materially false information shall be guilty of a Class 6 felony. The provision of each applicable return containing one or more false statements shall constitute a separate offense.

F. The Attorney General may promulgate regulations to implement and carry out the provisions of this section.

2008, c. 176, § 3.1-336.8:1.

§ 3.2-4210. Escrow fund information.

The Attorney General at any time may require a nonparticipating manufacturer to provide proof from the financial institution in which such manufacturer has established a qualified escrow fund for the purpose of compliance with Article 1 (§ 3.2-4200 et seq.) of this chapter of the amount of money in and the dates of deposits to such fund being held on behalf of the Commonwealth and listing the amounts and dates of all withdrawals from such fund.

2003, c. 798, § 3.1-336.9; 2008, c. 860.

§ 3.2-4211. Quarterly escrow payments by certain nonparticipating manufacturers.

A. Notwithstanding the provisions of § 3.2-4201, on and after January 1, 2007, the Attorney General may require a nonparticipating manufacturer that is a new market entrant or that has been designated by the Attorney General as an elevated risk pursuant to subsection C of § 3.2-4206.1 to make the escrow payments required by § 3.2-4201 on a quarterly, rather than annual basis. For the purposes of this section, a "new market entrant" shall mean a tobacco product manufacturer that first seeks certification pursuant to § 3.2-4205 on or after January 1, 2007.

B. A nonparticipating manufacturer required to make quarterly payments pursuant to this section shall place into a qualified escrow account the amounts required pursuant to subdivision A 2 of § 3.2-4201 by the fifteenth of the second month following the end of each calendar quarter, except the payment for the last quarter of a calendar year shall be made by April 15 of the year following the year in question. Any adjustments for inflation to the amounts placed into a qualified escrow pursuant to this section shall be reflected in the payments for the last quarter of a calendar year.

C. A nonparticipating manufacturer required to make payments pursuant to this section shall also provide the certification required by subsection C of § 3.2-4201 on a quarterly basis. Any such nonparticipating manufacturer that fails in any quarter to place into escrow the funds required under this section shall be subject to the penalty provisions of § 3.2-4201.

D. The Attorney General is authorized to create any forms and require any nonparticipating manufacturer required to make quarterly payments pursuant to this section to submit any additional information as is necessary to enable the Attorney General to determine whether the nonparticipating manufacturer is in compliance with the provisions of this section. At the time the nonparticipating manufacturer is first certified by the Attorney General pursuant to § 3.2-4205 or at any time that the nonparticipating manufacturer is designated by the Attorney General as an elevated risk pursuant to subsection C of § 3.2-4206.1, the Attorney General will notify the nonparticipating manufacturer as to whether it will be required to make quarterly payments pursuant to this section. The Attorney General may seek an injunction to compel compliance with the reporting requirements. In any action brought pursuant to this subsection in which the Commonwealth prevails, the Commonwealth shall be entitled to recover the reasonable costs of investigation, costs of the action, and reasonable attorney fees.

E. A nonparticipating manufacturer required to make quarterly payments pursuant to this section who fails to properly do so shall be deemed to have failed to make required payments pursuant to § 3.2-4201 and shall be subject to all enforcement actions available for a violation of § 3.2-4201.

F. A nonparticipating manufacturer required to make quarterly payments pursuant to this section who, to the satisfaction of the Attorney General, has complied with the provisions of Article 1 (§ 3.2-4200 et seq.) of this chapter and the provisions of this article for a period of at least three calendar years may, upon request and upon the concurrence of the Attorney General, be permitted to make annual payments pursuant to Article 1 (§ 3.2-4200 et seq.) of this chapter and be relieved of further obligation to make quarterly payments.

2006, c. 674, § 3.1-336.9:1; 2008, c. 860; 2011, c. 297.

§ 3.2-4212. Penalties and other remedies.

A. In addition to any other civil or criminal penalty or remedy provided by law, upon a determination that any person has violated § 3.2-4207 or any regulation adopted pursuant thereto, the Commissioner may revoke or suspend such person's privilege to purchase tax stamps at a discounted rate. Each stamp affixed and each offer to sell cigarettes in violation of § 3.2-4207 shall constitute a separate violation. Upon a determination of a violation of § 3.2-4207 or any regulations adopted pursuant thereto, the Commissioner may also impose a civil penalty in an amount not to exceed the greater of (i) 500 percent of the retail value of the cigarettes sold or (ii) $5,000.

B. Any cigarettes that have been sold, offered for sale or possessed for sale in the Commonwealth, or imported for personal consumption in the Commonwealth, in violation of § 3.2-4207, shall be deemed contraband and may not be sold or offered for sale unless such cigarettes are listed in the Directory. Any such cigarettes that are sold or offered for sale when not included in the Directory shall be subject to confiscation and forfeiture. Any such confiscation and forfeiture shall be governed by the procedures contained in Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2, which shall apply mutatis mutandis; except that all such cigarettes so confiscated and forfeited shall be destroyed and not resold.

C. The Attorney General may seek an injunction to restrain a threatened or actual violation of § 3.2-4207, subsection A of § 3.2-4209, subsection B of § 3.2-4209, or subsection C of § 3.2-4209 by a stamping agent and to compel the stamping agent to comply with such provisions. In any action brought pursuant to this subsection in which the Commonwealth prevails, the Commonwealth shall be entitled to recover the reasonable costs of investigation, costs of the action and reasonable attorney fees.

D. It shall be unlawful for a person to (i) sell or distribute cigarettes or (ii) acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the Commonwealth in violation of § 3.2-4207. A violation of this section involving less than 3,000 packages of cigarettes is a Class 1 misdemeanor. A violation of this section involving 3,000 or more packages of cigarettes is a Class 1 misdemeanor, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of 90 days.

2003, c. 798, § 3.1-336.10; 2006, c. 674; 2008, cc. 758, 860; 2009, c. 847; 2012, cc. 283, 756.

§ 3.2-4213. Notice and review of determination.

A determination of the Attorney General to not list or to remove from the Directory a brand family or tobacco product manufacturer shall be subject to review in the manner prescribed by the Administrative Process Act (§ 2.2-4000 et seq.).

2003, c. 798, § 3.1-336.11; 2008, c. 860.

§ 3.2-4214. Promulgation of regulations.

The Commissioner may promulgate regulations necessary to assist him in performing his duties prescribed by this article.

2003, c. 798, § 3.1-336.12; 2008, c. 860.

§ 3.2-4215. Submission to jurisdiction of the Commonwealth; pleadings in English sufficient.

A. Any tobacco product manufacturer that produces cigarettes sold or offered for sale into or within the Commonwealth shall be deemed to have submitted to and agreed to the jurisdiction of the courts of the Commonwealth for the purpose of trying any action brought by the Commonwealth to enforce provisions of this article or Article 1 (§ 3.2-4200 et seq.) of this chapter.

B. In any action brought by the Commonwealth to enforce the provisions of this article or Article 1 (§ 3.2-4200 et seq.) of this chapter, sufficient notice of the action to the alleged violator shall be given by a complaint written in the English language. The Commonwealth shall not be required to bear any expense of translating such complaint into another language.

2003, c. 798, § 3.1-336.13; 2008, c. 860.

§ 3.2-4215.1. Authority of Attorney General; audit and investigation.

The Attorney General or his authorized representative shall have the authority to:

1. Conduct audits and investigations of (i) a nonparticipating manufacturer and its importers or a tobacco product manufacturer as defined in § 3.2-4200 that became a participating manufacturer after the Master Settlement execution date, as defined at section II (aa) of the Master Settlement Agreement, and its importers, (ii) exclusive distributors, retail dealers, stamping agents, and wholesale dealers, as defined in § 58.1-1000, and (iii) persons or entities engaged in delivery sales as defined in § 18.2-246.6; and

2. Upon reasonable cause to believe that a violation of this article or of Article 1 (§ 3.2-4200 et seq.) of this chapter, or of Chapter 10 (§ 58.1-1000 et seq.) of Title 58.1, or Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2 has occurred or is reasonably likely to occur, issue subpoenas, compel the attendance of witnesses, administer oaths, certify to official acts, take depositions within and without the Commonwealth, as now provided by law, and compel the production of pertinent books, payrolls, accounts, papers, records, documents, and testimony relevant to such investigation. If a person refuses, without good cause, to be examined or to answer a legal and pertinent question, or to produce a document or other evidence when ordered to do so by the Attorney General or his authorized representative, the Attorney General or his authorized representative may apply to the judge of the circuit court of the jurisdiction where such person is in attendance or located, upon affidavit, for an order returnable in no less than two nor more than five days, directing such person to show cause why he should not be examined, answer a legal or pertinent question or produce a document, record or other evidence. Upon the hearing of such, if the court determines that such person, without good cause, has refused to be examined or to answer legal or pertinent questions, or to produce a document, record or other evidence, the court may order compliance with the subpoena and assess all costs and reasonable attorney fees against such person. If the motion for an order is granted and the person thereafter fails to comply with the order, the court may make such orders as are provided for in the Rules of the Supreme Court of Virginia. Subpoenas shall be served and witness fees and mileage paid as allowed in civil cases in the circuit courts of the Commonwealth.

2008, c. 758, § 3.1-336.13:1.

§ 3.2-4216. Recovery of costs and fees by Attorney General.

In any action brought by the Commonwealth to enforce this article or Article 1 (§ 3.2-4200 et seq.) of this chapter in which the Commonwealth prevails, or as part of the settlement of any matter arising from an investigation prior to the filing of such action, and in addition to any civil or criminal penalty or other amount which the court may determine, the Attorney General shall be entitled to recover the reasonable costs of investigation, expert witness fees, costs of the action and reasonable attorneys' fees.

2003, c. 798, § 3.1-336.14; 2008, c. 860.

§ 3.2-4217. Disgorgement of profits for violations.

If a court determines that a person has violated this article, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the Treasurer of the Commonwealth. Unless otherwise expressly provided, the remedies or penalties provided by this article are cumulative to each other and to the remedies or penalties available under all other laws of the Commonwealth.

2003, c. 798, § 3.1-336.15; 2008, c. 860.

§ 3.2-4217.1. Presumption.

In any action under subsection C of § 3.2-4201, reports of numbers of cigarettes stamped submitted to the Attorney General pursuant to subsection A of § 3.2-4209 shall be admissible in evidence and shall be presumed to accurately state the number of cigarettes stamped during the time period by the stamping agent that submitted the report absent a contrary showing by the nonparticipating manufacturer or importer. Nothing in this section shall be construed as limiting or otherwise affecting the Commonwealth's right to maintain that such reports are incorrect or do not accurately reflect a nonparticipating manufacturer's sales in the Commonwealth during the time period in question, and the presumption shall not apply in the event the Commonwealth does so maintain.

2008, c. 758, § 3.1-336.15:1.

§ 3.2-4218. Conflicts.

If an appropriate court finds that the provisions of this article and of Article 1 (§ 3.2-4200 et seq.) of this chapter conflict and cannot be harmonized, then the provisions of Article 1 shall control. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article causes Article 1 to no longer constitute a qualifying or model statute, as those terms are defined in the Master Settlement Agreement, then that portion of this article shall not be valid.

2003, c. 798, § 3.1-336.16; 2008, c. 860; 2015, c. 709.

§ 3.2-4219. Materially false statements.

Any tobacco product manufacturer, stamping agent, or importer of cigarettes, or any officer, employee, or agent of any such entity, who knowingly and with the intent to defraud, mislead, or deceive makes any materially false statement in any record required by this chapter to be kept, or in any document required by this chapter to be filed with the Attorney General is guilty of a violation of § 18.2-498.3. Each document filed containing one or more false statements shall constitute a separate offense.

2009, c. 847.

Chapter 43. Grades, Marks, and Brands.

Article 1. General Provisions.

§ 3.2-4300. Definitions.

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

"Agricultural product" means any horticultural, viticulture, dairy, livestock, poultry, bee, or other farm or garden product.

"Director" means the Director of the Division of Marketing of the Department.

Code 1950, § 3-258; 1966, c. 702, § 3.1-337; 2008, c. 860.

§ 3.2-4301. Unmarked products.

This article shall not apply to any agricultural product or products not marked or designated by or with any trademark, brand or other markings indicating grade, classification, quality, condition, or size.

Code 1950, § 3-266; 1966, c. 702, § 3.1-345; 2008, c. 860.

§ 3.2-4302. Establishment of grades, marks, and brands.

The Director, with the approval of the Commissioner, may adopt regulations governing the voluntary use of grades, trademarks, brands, and other markings for agricultural products produced, packed, or marked in the Commonwealth. The regulations shall prescribe the: (i) grade, classification, quality, condition, size, variety, quantity, or other characteristics of such products; and (ii) marks identifying the party responsible for the grading and marking of such products.

Code 1950, § 3-259; 1966, c. 702, § 3.1-338; 2008, c. 860.

§ 3.2-4303. Grades recommended by U.S. Department of Agriculture.

The Director, in carrying out the provisions of § 3.2-4302, shall adopt grades recommended or adopted by the U.S. Department of Agriculture if they are suitable for use in Virginia. If there is a demand for additional or different grades or standards by those persons in the Commonwealth producing and handling such products, the Director may establish and adopt grades or standards that are additional to or different from those recommended or adopted by the U.S. Department of Agriculture.

Code 1950, § 3-260; 1966, c. 702, § 3.1-339; 2008, c. 860.

§ 3.2-4304. When special grades, marks, and brands allowed; filing a certificate.

Any person desiring to pack, mark, sell, or offer for sale any agricultural product under any grade, trademark, brand, or other markings relating to grade, quality or size, not established and adopted by the Director, may file with the Director a certificate describing the special grade, trademark, brand, or other markings. If, the Director, with the approval of the Commissioner: (i) approves of the completeness of definitions of such special grade, trademark, brand, or other markings described in the certificate; (ii) finds that such grade terminology, trademark, brand, other markings, or definitions are in no way deceptive; and (iii) determines that definitions used to describe grade, classifications, quality, condition, size, variety, or other characteristics of agricultural products clearly document where they differ from the official grades, the special grade, trademark, brand, or other markings may thereafter be used by the person filing the certificate. For the purpose of this section a brand, trademark, or other markings may represent a grade.

Code 1950, § 3-261; 1966, c. 702, § 3.1-340; 2008, c. 860.

§ 3.2-4305. Unclassified products.

This article shall not prevent the use of any trademark or brand not established and adopted, or approved by the Director, on or in connection with any agricultural product, if, as a part of such trademark or brand, or immediately adjacent thereto, there is printed in letters not less than one-half inch in height the word "unclassified."

Code 1950, § 3-265; 1966, c. 702, § 3.1-344; 2008, c. 860.

§ 3.2-4306. Enforcement powers of Director.

The Director, with the approval of the Commissioner, shall enforce the provisions of this article and is empowered to:

1. Enter and inspect every place where agricultural products are produced, packed, stored for sale, shipped, delivered for shipment, in transit or offered for sale; and to inspect such places and any or all agricultural products, containing markings of any kind that indicate grade, classification, quality, condition, size, variety and quantity, and containers or equipment found at or in such places. It is unlawful for anyone to prevent, hinder or interfere with the Director or his agent in the exercise of any power under this subdivision;

2. To approve, superintend, control and discharge such inspectors, subordinate inspectors and agents as in his discretion may be deemed necessary for the purpose of enforcing the provisions of this article; and to prescribe their duties and fix their compensation;

3. Prohibit the movement of any agricultural product found to be marked in violation of any of the provisions of this article, prior to the product being accepted by a common carrier for shipment in interstate transit. Such product shall be repacked or remarked. A lot of any agricultural product shall not be considered accepted by a common carrier until the common carrier is loaded, sealed, and the bill of lading issued; and

4. Cause to be instituted through the attorney for the Commonwealth prosecutions for violations of this article.

Code 1950, § 3-262; 1966, c. 702, § 3.1-341; 2008, c. 860.

§ 3.2-4307. When products considered as offered for sale.

When any agricultural product is in transit, delivered to a common carrier for shipment, or delivered for storage, such transit or delivery shall be prima facie evidence that the product is offered for sale.

Code 1950, § 3-263; 1966, c. 702, § 3.1-342; 2008, c. 860.

§ 3.2-4308. Grades and brands shall be used in accordance with regulations.

It is unlawful to use:

1. Any grade, trademark, brand, or other markings established and adopted by the Director on or in connection with marking any agricultural product that is not in accordance with regulations established and adopted by the Director.

2. Any grade, trademark, brand, or other markings indicating grade, classification, quality, condition or size, for any agricultural product for which official grades, trademarks, brands, or other markings have not been established and adopted by the Director or are not in accordance with the provisions of § 3.2-4304.

Code 1950, § 3-264; 1966, c. 702, § 3.1-343; 2008, c. 860.

§ 3.2-4309. Unlawful removal of markings.

It is unlawful, except with the consent of the original packer, or in compliance with the regulations, for any person to remove from any agricultural product any markings that meet the requirements of this article relating to grade, classification, quality, condition, size, variety, quantity and other characteristics, or identify the party responsible for the packing or marking.

Code 1950, § 3-267; 1966, c. 702, § 3.1-346; 2008, c. 860.

§ 3.2-4310. Penalty for violation.

Any person who violates any of the provisions of this article is guilty of a Class 3 misdemeanor.

Code 1950, § 3-268; 1966, c. 702, § 3.1-347; 2008, c. 860.

§ 3.2-4311. Defenses to prosecution.

No person shall be convicted under the provisions of this article if:

1. The person is not a party to the packing, grading, or marking of such product; or

2. The agricultural product has passed inspection by an authorized inspector in the voluntary inspection service of the Department, or the U.S. Department of Agriculture, and found to be marked in accordance with the requirements of this article.

Code 1950, § 3-269; 1966, c. 702, § 3.1-348; 2008, c. 860.

Article 2. Virginia Quality Label.

§ 3.2-4312. Definitions.

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

"Agricultural and food product" means any horticultural, viticulture, dairy, livestock, poultry, bee, other farm or garden product, fish or fishery product, and other foods.

"Continuous official inspection" means that an employee or a licensed representative of the Division of Marketing or of the U.S. Department of Agriculture, or employees of either, shall regularly and continuously examine the commodity as it is being packed.

"Director" means the Director of the Division of Marketing of the Department.

"Division" means the Division of Marketing of the Department of Agriculture and Consumer Services.

Code 1950, § 3-270; 1966, c. 702, § 3.1-349; 2008, c. 860.

§ 3.2-4313. Use of Virginia Quality Label to designate inspected products.

The Director, with the approval of the Commissioner, may use an outline of Virginia impressed upon the labels, tags, seals, or containers of any agricultural or food product that has been subject to the continuous official inspection service indicating that the product is of such quality and description as shown on the label, tag, seal, or container. Such outline map when made use of pursuant to the provisions of this article shall be known as the "Virginia Quality Label."

Code 1950, § 3-271; 1966, c. 702, § 3.1-350; 2008, c. 860.

§ 3.2-4314. Collaboration with United States authorities.

In any instance when an authorized department, agent or officer of the United States collaborates with the Division in the inspection of any agricultural or food product, the Virginia Quality Label may, with the consent of the appropriate department, agency or officer of the United States, be used together with the shield of the United States on any label, tag, seal, or container, thus indicating continuous inspectional collaboration between the Division and a department, agency, or officer of the United States.

Code 1950, § 3-272; 1966, c. 702, § 3.1-351; 2008, c. 860.

§ 3.2-4315. Division may prepare and distribute labels, tags, and seals with Virginia Quality Label.

The Division may prepare labels, tags and seals impressed with the Virginia Quality Label and the shield of the United States. The Division may furnish the labels, tags, and seals at reasonable prices to any producer, processor, packer, or dresser whose agricultural and food product has been subject to such continuous official state or federal-state inspection service.

Code 1950, § 3-274; 1966, c. 702, § 3.1-353; 2008, c. 860.

§ 3.2-4316. Preparation and use of Label by producer; design to be determined by Director.

The Director may adopt regulations that permit any producer, processor, packer, or dresser to make or prepare, or to cause to be made or prepared, the labels, tags, or seals to be placed on his own product, or to print, stamp, or otherwise place or cause to be placed the Virginia Quality Label and the shield of the United States upon such products or containers that have been subject to continuous state or federal-state inspection, so long as the Director, with the approval of the Commissioner, determines the design of the label, tag, seal, stamp, or other device.

Code 1950, § 3-275; 1966, c. 702, § 3.1-354; 2008, c. 860.

§ 3.2-4317. Virginia Quality Label Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Quality Label Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. Moneys in the Fund shall be used solely for the purposes set forth in this chapter. All moneys derived from the furnishing of labels, tags, and seals, or from permitting the use of the Virginia Quality Label or the label with the shield of the United States 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 Division to defray the cost of preparing, furnishing, and publicizing the labels, tags, and seals.

Code 1950, § 3-277; 1966, c. 702, § 3.1-356; 2008, c. 860.

§ 3.2-4318. Jurisdiction to enjoin unlawful use of Label.

A. Any circuit court in the Commonwealth shall have jurisdiction to enjoin the use of the Virginia Quality Label, a label with the shield of the United States, or any imitation or counterfeit likeness used in violation of this article.

B. The Director, with the approval of the Commissioner, may apply for and an appropriate court may grant a temporary or permanent injunction restraining any person from using the labels described in subsection A.

Code 1950, §§ 3-279, 3-280; 1966, c. 702, §§ 3.1-358, 3.1-359; 2005, c. 681; 2008, c. 860.

§ 3.2-4319. Certificate as evidence.

Every certificate relating to the analysis, grade, classification, quality, or condition of agricultural products, either raw or processed, that is issued: (i) under this article; (ii) in cooperation between federal and state authorities, agencies, or organizations pursuant to a federal statute and this article; (iii) under a similar act of the legislature of any other state, and every certified copy; and (iv) every certificate issued pursuant to a federal statute, and every certified copy, shall be received in any court of the Commonwealth as prima facie evidence of the truth of the statements contained in the certificate.

Code 1950, § 3-280.1; 1966, c. 702, § 3.1-360; 2008, c. 860.

§ 3.2-4320. Restrictions as to use of Label.

It is unlawful to use the Virginia Quality Label or a label with the shield of the United States, except in accordance with regulations prescribed by the Director with the approval of the Commissioner, and in no case shall it be used upon the label, tag, seal, or container of the product of any farm, factory, mill or of any other producing, processing, packing, preparing, or dressing establishment unless such product is processed, packed, prepared, or dressed under continuous official state or federal-state inspection.

Code 1950, § 3-273; 1966, c. 702, § 3.1-352; 2008, c. 860.

§ 3.2-4321. Penalties for misuse or unauthorized use of Virginia Quality Label.

A. It is unlawful for any person:

1. To use the Virginia Quality Label or a label with the shield of the United States in violation of any provisions of this article;

2. To use, with the intent to mislead or deceive, any imitation or counterfeit likeness of the Virginia Quality Label, or a label or shield of the United States: (i) on the label, tag, seal, container, or sign of any product that is sold or offered for sale; or (ii) in connection with any offer to sell or advertise for sale any product.

B. Any person who violates any provision of this article is guilty of a Class 3 misdemeanor.

C. Any corporation incorporated under the laws of the Commonwealth that has for 18 years or more prior to June 29, 1948, been using an outline map of Virginia, of its own design, for branding packages or containers for agricultural or horticultural products bought and sold by it, shall have the right to continue to use such outline map for such purpose.

Code 1950, § 3-278; 1966, c. 702, § 3.1-357; 2008, c. 860.

Article 3. Grain Handlers.

§ 3.2-4322. Definitions.

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

"Grain" means corn (maize), wheat, rye, oats, barley, flaxseed, soybeans, and such other grains as the usages of the trade may warrant and permit.

"Handler" means a person who buys grain for resale as grain or grain products.

Code 1950, § 3-269.1; 1966, c. 433, § 3.1-348.1; 2008, c. 860.

§ 3.2-4323. Commissioner authorized to require registration; forms.

The Commissioner may require all handlers to register on forms prepared for that purpose. Such forms shall require the handler to state his name, address, and the county or city where he shall weigh and grade grain.

Code 1950, § 3-269.2; 1966, c. 433, § 3.1-348.2; 2008, c. 860.

§ 3.2-4324. Regulations.

The Board may adopt regulations relating to the handling of grain in the Commonwealth, including:

1. The weighing devices, approved under the Virginia Weights and Measures Law (§ 3.2-5600 et seq.) and the procedures employed to give accurate weights.

2. The grading equipment that is acceptable in administering the United States Grain Standards Act and the use of grading equipment to be used in determining the value of grain. Such use of such equipment shall be pursuant to procedures employed by inspectors licensed under the United States Grain Standards Act.

3. Samples of lots graded by other than a Virginia licensed inspector and the lot discounted shall be identity preserved for 24 hours.

4. The keeping of records in accordance with good business practices.

Code 1950, § 3-269.3; 1966, c. 433, § 3.1-348.3; 2008, c. 860.

§ 3.2-4325. Grain handlers to register if required by Commissioner.

All persons before operating as a handler in the Commonwealth shall register with the Commissioner.

Code 1950, § 3-269.4; 1966, c. 433, § 3.1-348.4; 2008, c. 860.

§ 3.2-4326. Grain to be purchased from registered handlers.

It is unlawful to buy grain for resale as grain or grain products unless bought by a handler registered by the Commissioner.

Code 1950, § 3-269.5; 1966, c. 433, § 3.1-348.5; 2008, c. 860.

§ 3.2-4327. Violation of article.

Any person who violates any of the provisions of this article or regulations established by the Board hereunder is guilty of a Class 1 misdemeanor.

Code 1950, § 3-269.6; 1966, c. 433, § 3.1-348.6; 2008, c. 860.

Chapter 44. Beekeeping.

§ 3.2-4400. Definitions.

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

"Apiary" means any place where one or more colonies of bees are kept.

"Appliance" means any apparatus, tool, machine, or other device used in the handling and manipulating of bees, honey, wax, hives, and hive parts and shall include containers used in transporting, processing, storing, or merchandising bees and bee products.

"Bee" means the honeybee, Apis mellifera and genetic variations thereof, at any living stage; and may include other hymenopterous insects that depend on pollen and nectar for food.

"Bee diseases" means departures from a sound state of health of bees characterized by visible symptoms including American foulbrood and any other diseases, insects, mites, or bee pests.

"Bee equipment" means hives and hive parts including frames, supers, covers, bottom boards, and beekeeping apparel.

"Brood comb" means the assemblage of cells containing any living stage of bees at any time prior to their emergence as adults.

"Certificate of health" means a state-of-origin document prepared and signed by the State Apiarist or other authorized person declaring the bees, bee equipment, appliances, apiaries, and honey houses to be free of bee diseases.

"Colony" means a queenright assemblage of social bees capable of reproducing.

"Combless package" means a shipping container for transporting bees or queens.

"Entry permit" means a state-of-destination document prepared by the State Apiarist or other authorized person authorizing the entry of bee equipment, appliances, and bees on combs into the Commonwealth.

"Hive" means a box, skep, barrel, log gum, or other container used as a domicile for bees.

"Honey house" means any building where honey for commercial use is extracted, graded, processed, packed, or stored.

"Person" means the term as defined in § 1-230. The term also means any society.

Code 1950, § 3-483; 1966, c. 702, § 3.1-588; 1972, c. 499, § 3.1-610.1; 1982, c. 100; 2008, c. 860.

§ 3.2-4401. Powers and duties of the Board.

The Board may adopt regulations to:

1. Suppress bee diseases by regulating the movement of bees and controlling or destroying disease reservoirs;

2. Require apiary identification;

3. Adopt colony strength standards for pollination services;

4. Promote the sale and distribution of bees and their products; and

5. Effectively administer and enforce this chapter.

1972, c. 499, § 3.1-610.9; 2008, c. 860.

§ 3.2-4402. State Apiarist.

The Commissioner may appoint a State Apiarist with adequate experience and training in practical beekeeping. The State Apiarist shall promote the science of beekeeping by education and other means; inspect apiaries, beehives, and beekeeping equipment within the Commonwealth for bee disease; and perform other duties that may be required by regulation or law, including the inspection of honey houses for sanitation.

Code 1950, §§ 3-484, 3-485; 1966, c. 702, §§ 3.1-589, 3.1-590; 1972, c. 499, §§ 3.1-610.2, 3.1-610.3; 2008, c. 860.

§ 3.2-4403. Duties of beekeepers.

Beekeepers shall:

1. Provide movable frames with combs or foundation in all hives used by them to contain bees, except for short periods, not to exceed the first spring honey flow, and to cause the bees in such hives to construct brood combs in such frames so that any of the frames may be removed from the hive without injuring other combs in such hive; and

2. Securely and tightly close the entrance of any hive in apiaries not free from disease and make the hive tight so that robber bees cannot enter, leave, or obtain honey from the hives as long as the hives remain in a location accessible by honeybees.

Code 1950, § 3-497; 1966, c. 702, § 3.1-602; 1972, c. 499, § 3.1-610.10; 2008, c. 860.

§ 3.2-4404. Duty to notify the State Apiarist of diseased bees.

Any person in the Commonwealth who is aware of diseased bees in his or other apiaries shall immediately notify the State Apiarist, giving the exact location of the diseased bees and other information as requested.

Code 1950, § 3-498; 1966, c. 702, § 3.1-603; 1972, c. 499, § 3.1-610.8; 2008, c. 860.

§ 3.2-4405. Entry permit required to bring bees and used bee equipment into Commonwealth; inspection.

A. No person shall bring any bees on combs, empty used combs, used hives, or other used apiary appliances into the Commonwealth without first receiving an entry permit to do so from the State Apiarist. Entry permits shall be issued only upon receipt of satisfactory proof that the bees and other items are free from bee diseases. Specifically identifiable colonies must be brought into the Commonwealth within 60 days from the issuance of the entry permit.

B. Bees brought into the Commonwealth shall be subject to inspection at any time.

Code 1950, § 3-501; 1950, p. 227; 1966, c. 702, § 3.1-606; 1972, c. 499, § 3.1-610.15; 1982, c. 100; 2008, c. 860.

§ 3.2-4406. Certificate of health to accompany bees in combless packages brought into Commonwealth.

All bees in combless packages transported into the Commonwealth shall be accompanied by a certificate of health issued by the proper official of the place of origin.

Code 1950, § 3-500; 1966, c. 702, § 3.1-605; 1972, c. 499, § 3.1-610.14; 2008, c. 860.

§ 3.2-4407. Certificate of health to accompany bill of sale.

No bees on combs, hives, used beekeeping equipment with combs, or appliances may be offered for sale without a certificate of health prepared by the State Apiarist for each specifically identifiable item. The certificate of health must accompany each bill of sale.

Code 1950, § 3-502; 1966, c. 702, § 3.1-607; 1972, c. 499, § 3.1-610.17; 2008, c. 860.

§ 3.2-4408. Rearing package bees and queens for sale.

A. No person shall rear package bees or queens for sale without first applying to the State Apiarist for inspection at least once during each summer season.

B. Upon the discovery of any bee diseases, the rearer or seller shall at once cease to ship bees from affected apiaries until the State Apiarist issues a certificate of health for such apiaries.

C. No person engaged in rearing queen bees for sale shall use honey in the making of bee food for use in mailing cages.

Code 1950, § 3-496; 1966, c. 702, § 3.1-601; 1972, c. 499, §§ 3.1-610.12, 3.1-610.13; 2008, c. 860.

§ 3.2-4409. Right of entry for inspection and enforcement.

The Commissioner may enter any private or public premises during business hours, except private dwellings. The Commissioner shall have access to all apiaries and other places where bees, combs, beekeeping equipment, and appliances may be kept.

Code 1950, § 3-488; 1966, c. 702, § 3.1-593; 1972, c. 499, § 3.1-610.7; 2008, c. 860.

§ 3.2-4410. Measures to eradicate and control bee diseases; appeal.

A. The State Apiarist shall examine or inspect the bees in the Commonwealth whenever they are suspected of being infected with bee diseases and, on request, shall inspect bees to be sold or to be transported interstate.

B. If bees are found to be infected with bee diseases, the State Apiarist shall take suitable measures to eradicate or control such diseases.

C. If the owner of such diseased bees fails to take such steps as may be prescribed by the State Apiarist to eradicate or control the disease, the State Apiarist shall destroy or treat the bees, hives, and honey.

D. The State Apiarist may prohibit the removal of bees, honey, wax, combs, hives, or other used beekeeping equipment from any place where bees are known to be infected with bee diseases, until he issues a certificate of health for such place.

E. Within 10 days from the receipt of an order from the State Apiarist to destroy or treat his diseased bees, hives, honey, or appliances, any owner of diseased bees may file a written appeal with the Commissioner. Upon timely receipt of a written appeal under this section, the Commissioner shall act upon the appeal in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, §§ 3-487, 3-490, 3-491, 3-493; 1966, c. 702, §§ 3.1-592, 3.1-595, 3.1-596, 3.1-598; 1972, c. 499, §§ 3.1-610.5, 3.1-610.6, 3.1-610.11; 2008, c. 860.

§ 3.2-4411. Abandoned apiaries.

The State Apiarist may deem an apiary to be abandoned if: (i) the bees and hives show evidence of a period of neglect exceeding one year; and (ii) the owner of the apiary has not been identified through a reasonable search of available records. If the State Apiarist deems an apiary to be abandoned, he shall certify his findings in a declaration of abandonment to the treasurer of the locality where the apiary is located. The treasurer shall give notice of such certification to the last known owner of the apiary and the owner of the land upon which the apiary is located by personal service, by posting at last known residence, or by publication. If after 60 days, the owner or landowner has not laid claim to the apiary, the treasurer may hold a sheriff's sale, issue a treasurer's deed to the successful bidder, and deposit any proceeds into the general fund of the locality. If disposition is not made within 90 days of the date of the declaration of abandonment, the State Apiarist may take possession of the apiary and destroy the related bees, hives, and equipment.

1972, c. 499, § 3.1-610.18; 2008, c. 860.

§ 3.2-4411.1. Apiaries; limitation on liability.

A. Any person owning or operating an apiary that is not located on his own property shall post the name and address of the owner or operator in a conspicuous place in the apiary.

B. A person who operates an apiary in a reasonable manner, in compliance with local zoning restrictions, and in conformance with the written best management practices as provided by regulation of the Department of Agriculture and Consumer Services shall not be liable for any personal injury or property damage that occurs in connection with his keeping and maintaining of bees, bee equipment, queen breeding equipment, apiaries, or appliances. The limitation of liability established by this section does not apply to intentional tortious conduct or acts or omissions constituting gross negligence or negligence.

C. The limitation of liability in this section shall not take effect until regulations are adopted by the Board. The Board may adopt initial regulations under this section to implement the provisions of this section to be effective no later than November 1, 2016. Such initial regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act; however, the Board shall publish proposed regulations in the Virginia Register of Regulations and allow at least 30 days for public comment, to include an online public comment forum on the Virginia Regulatory Town Hall, after publication. Any amendments to such initial regulations or any subsequent regulations adopted pursuant to this section shall comply with the requirements of Article 2 of the Administrative Process Act. Any regulations adopted shall include best management practices for the operation of apiaries.

2016, c. 564.

§ 3.2-4412. Reserved.

Reserved.

§ 3.2-4413. Costs of administering chapter.

Normal costs of administering this law shall be borne by the Commonwealth. Costs for services, products, or articles beyond the scope of the law are reimbursable and payable to the Treasurer of Virginia by the persons affected. The Commissioner shall promptly credit reimbursements to the fund from which originally expended.

1972, c. 499, § 3.1-610.20; 2008, c. 860.

§ 3.2-4414. Violation of chapter.

Any person violating any of the provisions of this chapter or any order or regulation issued hereunder, or interfering in any way with the Commissioner in the discharge of his duties is guilty of a Class 1 misdemeanor.

Code 1950, § 3-505; 1966, c. 702, § 3.1-610; 1972, c. 499, § 3.1-610.21; 2008, c. 860.

§ 3.2-4415. Beehive Grant Fund.

From such funds as may be appropriated by the General Assembly and any gifts, grants, or donations from public or private sources, there is hereby created in the state treasury a special nonreverting, permanent fund to be known as the Beehive Grant Fund (the Fund), to be administered by the Department of Agriculture and Consumer Services. The Fund shall be established on the books of the Comptroller. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund at the end of each fiscal year, including interest thereon, shall not revert to the general fund but shall remain in the Fund. Expenditures and disbursements from the Fund, which shall be in the form of grants, shall be made by the State Treasurer on warrants issued by the Comptroller upon the written request signed by the Commissioner. Grants from the Fund shall only be made for the purposes of the beehive distribution program pursuant to § 3.2-4416.

2012, cc. 412, 473.

§ 3.2-4416. Beehive distribution program.

Any individual registered with the Department as a beekeeper may apply to the Department for no more than three basic beehive units per year. The Department shall establish guidelines setting forth the components of a basic beehive unit and the general requirements for qualifying for such unit. Applications for beehive units shall be processed in the order in which completed eligible applications are received. In the event that funds are not available in the Beehive Grant Fund established pursuant to § 3.2-4415 (the Fund), the Department may cease accepting applications and notify applicants that the funds available for that fiscal year have been exhausted. The Department shall not be required to carry forward pending applications to the next fiscal year in which funds are available in the Fund.

The Department may use funds from the Fund to pay for the costs of purchasing, building, or distributing the beehive units and for the costs of administering the beehive distribution program. The Department may work cooperatively with the Virginia Cooperative Extension Service and Agricultural Experiment Station Division, established pursuant to Article 2 (§ 23.1-2608 et seq.) of Chapter 26 of Title 23.1, to carry out the provisions of this section.

2012, cc. 412, 473; 2018, c. 192.

Chapter 45. Grading, Packing, and Marking of Apples.

§ 3.2-4500. Definitions.

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

"Container" means any closed package of any description that is used to contain apples and includes boxes, baskets, and bags of any size or material.

"Packer" means any person who first packs apples in a container for shipment or sale.

Code 1950, § 3-512.1; 1954, c. 697; 1966, c. 702, § 3.1-611; 1999, c. 793; 2008, c. 860.

§ 3.2-4501. Grades and standards.

The Board shall establish and adopt official grades and standards for apples by which the quality, quantity and size of the apples may be determined. Before establishing such official grades and standards, the Board shall consult with the Board of Directors of the Virginia Horticultural Society and the Board of Directors of the Virginia Apple Growers Association.

Code 1950, § 3-512.5; 1954, c. 697; 1966, c. 702, § 3.1-615; 1999, c. 793; 2008, c. 860.

§ 3.2-4502. Marking containers; contents to conform to markings.

It is unlawful for apples, except apples delivered for processing or packing or delivered to storage for packing, to be sold, packed for sale, offered for sale or transported for sale, in containers, unless:

1. Each such container bears conspicuously in plain words and figures on the outside, or on a durable stuffer within and readily readable from the outside, showing the correct size, minimum quantity and correct variety of the apples in the container, one of the official grades and one of the official standards for apples established by the Board under this chapter, and the name and address of the producer's or packer's business; and

2. The apples in each container conform to the markings appearing on the container.

Code 1950, § 3-512.2; 1954, c. 697; 1966, c. 702, § 3.1-612; 1999, c. 793; 2008, c. 860.

§ 3.2-4503. Packing in used containers.

When apples are packed in used containers, any markings pertaining to previous contents of such containers shall be obliterated by the producer or packer and the markings required under this chapter shall be substituted.

Code 1950, § 3-512.3; 1954, c. 697; 1966, c. 702, § 3.1-613; 1999, c. 793; 2008, c. 860.

§ 3.2-4504. Prima facie evidence of being offered or transported for sale.

When containers of apples are placed in transit for sale or delivery or delivered for storage, such transit or delivery shall be prima facie evidence that the apples are offered or transported for sale.

Code 1950, § 3-512.4; 1954, c. 697; 1966, c. 702, § 3.1-614; 1999, c. 793; 2008, c. 860.

§ 3.2-4505. Enforcement of chapter.

The Commissioner may:

1. Enter and inspect all places within the Commonwealth where apples are produced, packed or stored for sale, shipped, delivered for shipment, offered or exposed for sale, or sold, and to inspect all apples, containers and equipment found in any such places.

2. Institute injunction proceedings for violations of any provision of this chapter or regulation adopted hereunder in any circuit court in any county or city of the Commonwealth where apples may be found improperly marked in violation of any provision of this chapter, either through the attorney for the Commonwealth or otherwise.

3. Prohibit in writing the movement in intrastate, interstate or foreign commerce of any apples found improperly marked in violation of any provision of this chapter or regulation adopted hereunder until such apples are properly marked and released in writing by the Commissioner.

Code 1950, § 3-512.6; 1954, c. 697; 1966, c. 702, § 3.1-616; 1999, c. 793; 2008, c. 860.

§ 3.2-4506. Penalty for violation.

A. Any person, except a contract or common carrier, who moves or causes to be moved any apples, the movement of which has been prohibited in writing as provided in § 3.2-4505, is guilty of a Class 1 misdemeanor.

B. Any person who violates any provision of this chapter is guilty of a Class 1 misdemeanor.

Code 1950, § 3-512.7; 1954, c. 697; 1966, c. 702, § 3.1-617; 1999, c. 793; 2008, c. 860.

Chapter 46. Controlled Atmosphere Storage of Apples and Peaches.

§ 3.2-4600. Definitions.

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

"Controlled atmosphere storage" or "CA" means any storage warehouse consisting of one or more rooms in any one facility in which atmosphere gases are controlled in their amount and in degrees of temperature for the purpose of controlling the condition and maturity of fruit.

"Fruit" means any apples and peaches.

Code 1950, § 3-710; 1964, c. 214; 1966, c. 702, § 3.1-991; 1997, c. 179; 2008, c. 860.

§ 3.2-4601. Regulations.

The Board may adopt regulations, after consultation with the Board of Directors of the Virginia State Horticultural Society or the Virginia Apple Growers Association, that:

1. Prescribe components of the atmosphere required including the maximum amount of oxygen that may be retained in a sealed controlled atmosphere storage warehouse;

2. Determine the length of time, not to be less than 60 days and not to exceed 10 months, and the degrees of temperature at which fruit shall be retained in controlled atmosphere storage before they shall be classified as having been stored in controlled atmosphere storage; and

3. Prescribe grade and condition standards applicable to CA apples.

Code 1950, § 3-716; 1964, c. 214; 1966, c. 702, § 3.1-997; 1973, c. 199; 1997, c. 179; 2008, c. 860.

§ 3.2-4602. Operators of warehouses may register with Commissioner; expiration of registration.

Any person engaging in the operation of a controlled atmosphere storage warehouse may register with the Commissioner. Such registration shall expire on August 31 of each year.

Code 1950, § 3-713; 1964, c. 214; 1966, c. 702, § 3.1-994; 2008, c. 860.

§ 3.2-4603. Application for registration; when Commissioner to register applicant.

A. Application for registration to operate a controlled atmosphere storage warehouse shall be on a form prescribed by the Commissioner and shall include the following:

1. The full name of the person applying for registration;

2. If such applicant is an individual, receiver, trustee, firm, partnership, association or corporation, the full name of each member of the firm or partnership or the name of the officers of the association or corporation shall be given on the application;

3. The principal business address of the applicant;

4. The name of a person domiciled in the Commonwealth authorized to receive and accept service or legal notices of all kinds;

5. The storage capacity, by cubic capacity or volume, of each controlled atmosphere storage warehouse the applicant intends to operate;

6. The kind of fruits to be placed in controlled atmosphere storage; and

7. Any other information prescribed by the Commissioner necessary to carry out the provisions of this chapter.

B. The Commissioner shall register an applicant if he determines that the applicant has satisfied the requirements of this chapter and the regulations adopted hereunder.

C. The Commissioner, when issuing a registration to an applicant, shall include a warehouse number that shall be preceded by the letters "VA-CA."

Code 1950, §§ 3-714, 3-718; 1964, c. 214; 1966, c. 702, §§ 3.1-995, 3.1-999; 2008, c. 860.

§ 3.2-4604. Owner or buyer may apply for inspection and certification of fruits.

Any owner or, with the consent of the owner, a proposed buyer of any fruits, subject to the provisions of this chapter may apply to the Commissioner for inspection and certification that such fruits meet the requirements provided for in this chapter or regulations adopted hereunder.

Code 1950, § 3-719; 1964, c. 214; 1966, c. 702, § 3.1-1000; 2008, c. 860.

§ 3.2-4605. Fees.

The Board shall prescribe the fees to be charged to the registrant or owner for the inspection and certification of any fruits subject to the provisions of this chapter or regulations adopted hereunder. In no case shall the fees exceed the fees charged for inspection of fruit not under CA storage. If the inspection fees payable under this chapter are not paid within 30 days from the date of billing, the Commissioner may withdraw inspection or refuse to perform any inspection or certification services for the person in arrears. The Commissioner may demand and collect inspection and certification fees prior to inspecting and certifying any fruits for such person.

Code 1950, § 3-720; 1964, c. 214; 1966, c. 702, § 3.1-1001; 2008, c. 860.

§ 3.2-4606. Disposition of funds.

All moneys collected under the provisions of this chapter for the inspection and certification of any fruits subject to the provisions of this chapter shall be handled and deposited in the manner provided for in subsection B of § 3.2-3400, for the handling of inspection and certification fees derived from the inspection of any agricultural products.

Code 1950, § 3-722; 1964, c. 214; 1966, c. 702, § 3.1-1003; 2008, c. 860.

§ 3.2-4607. Fruit represented as exposed to controlled atmosphere storage to meet requirements of chapter.

It is unlawful for any person to sell, offer for sale, hold for sale, or transport for sale any fruits represented as having been exposed to controlled atmosphere storage or to use any such terms or form of words or symbols of similar import unless such fruits have been stored in controlled atmosphere storage that complies with the requirements of this chapter or regulations adopted hereunder.

Code 1950, § 3-711; 1964, c. 214; 1966, c. 702, § 3.1-992; 2008, c. 860.

§ 3.2-4608. Inspection and certification of fruit by Commissioner.

It is unlawful for any person to place or stamp the letters "CA" or a similar designation in conjunction with a number upon any container or subcontainer of any fruits, unless:

1. The Commissioner has inspected such fruits and validated a certificate stating their condition, that they were stored in a warehouse registered under the provisions of this chapter and that they meet all other requirements of this chapter or regulations adopted hereunder; and

2. A certificate number and certificate date is affixed to all shipping documents.

Code 1950, § 3-712; 1964, c. 214; 1966, c. 702, § 3.1-993; 2008, c. 860.

§ 3.2-4609. Denial, suspension or revocation of registration.

The Commissioner may deny, suspend or revoke registration provided for in § 3.2-4602 after a hearing, in any case in which he finds that there has been a failure or refusal to comply with the provisions of this chapter or regulations adopted hereunder. All regulations, actions, and hearings for a denial, suspension or revocation of the registration shall be subject to the provisions of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2.

Code 1950, § 3-717; 1964, c. 214; 1966, c. 702, § 3.1-998; 2008, c. 860.

§ 3.2-4610. Inspection certificate prima facie evidence of facts stated.

Every inspection certificate issued by the Commissioner under the provisions of this chapter shall be received in all courts of the Commonwealth as prima facie evidence of the facts stated therein.

Code 1950, § 3-721; 1964, c. 214; 1966, c. 702, § 3.1-1002; 2008, c. 860.

§ 3.2-4611. Evidence that fruits are offered or transported for sale.

When packages of fruits are placed in transit for sale or delivery or delivered for storage, such transit or delivery shall be prima facie evidence that the fruits are offered or transported for sale.

Code 1950, § 3-723; 1964, c. 214; 1966, c. 702, § 3.1-1004; 2008, c. 860.

§ 3.2-4612. Actions to enjoin violations.

The Commissioner may bring an action to enjoin the violation or threatened violation of any provision of this chapter or any regulation adopted hereunder in the circuit court having jurisdiction in the county or city where such violation occurs or is about to occur, notwithstanding the existence of any other remedies of law.

Code 1950, § 3-724; 1964, c. 214; 1966, c. 702, § 3.1-1005; 2008, c. 860.

§ 3.2-4613. Violations of chapter and regulations.

Any person violating the provisions of this chapter or regulations adopted hereunder is guilty of a Class 1 misdemeanor.

Code 1950, § 3-726; 1964, c. 214; 1966, c. 702, § 3.1-1007; 2008, c. 860.

Chapter 47. Sale of Farm Produce.

Article 1. General Provisions.

§ 3.2-4700. Definitions.

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

"Director" means the Director of the Division of Marketing.

"Division" means the Division of Marketing of the Department of Agriculture and Consumer Services.

Code 1950, § 3-526; 1966, c. 702, § 3.1-685; 1978, c. 396; 1993, c. 115; 2008, c. 860.

§ 3.2-4701. Division of Marketing; administration; appointment of Director and assistants; responsibilities.

A. The Division is hereby established within the Department, and shall be administered under the supervision of the Commissioner by the Director, who shall be qualified for the performance of his duties by training and experience.

B. The Division shall:

1. Promote the economical handling, packing, storage, distribution, and sale of agricultural products in the Commonwealth; and

2. Assist producers and consumers in selling and purchasing agricultural products at a fair and reasonable price.

Code 1950, § 3-526; 1966, c. 702, § 3.1-685; 1978, c. 396; 1993, c. 115; 2008, c. 860.

§ 3.2-4702. Powers and duties of Director.

In the administration of the Division, the Director, under the supervision of the Commissioner:

1. Shall investigate: (i) the cost of food production and marketing; (ii) the market demand for the products of Virginia farms; (iii) the proximity of producers to the most profitable markets for their products; (iv) the transportation facilities; and (v) the most advantageous methods of packing, storing, and standardizing agricultural products;

2. Shall conduct analyses to determine whether the agricultural products of the Commonwealth are being subjected to unfair competition from agricultural products or manufactured substitutes;

3. May assist in the organization of cooperatives among producers and consumers, for the purpose of promoting and conserving the interest of producers of agricultural products in the sale and distribution of such products, and in the purchase of their necessary supplies;

4. May cooperate with federal officials, national, district, and state committees and supervisory bodies in enforcing codes and marketing agreements adopted under the federal Agricultural Adjustment Act (7 U.S.C. § 1281 et seq.) or other similar acts of Congress;

5. May enter into agreements with federal officials, national, district, or state committees or supervisory bodies for carrying out the provisions of this section or the Federal Agricultural Adjustment Act or other similar acts of Congress;

6. May appoint, supervise, and dismiss as inspectors or representatives of the Division those employees of his office as he may deem necessary for the enforcement and carrying out the purposes of subdivisions 4 through 7; and

7. May receive from the federal department or its subdivisions, national, district or state committees or supervisory bodies, or from other sources, fees or moneys for carrying out the purposes of subdivisions 4 through 7, deposit them in the state treasury, and expend such moneys for carrying out the purposes of these subdivisions.

Code 1950, §§ 3-527, 3-531; 1966, c. 702, §§ 3.1-686, 3.1-690; 1993, c. 115; 2008, c. 860.

§ 3.2-4703. Cooperation of U.S. Department of Agriculture.

In carrying out the provisions of this chapter, the Division shall endeavor to secure the cooperation and assistance of the U.S. Department of Agriculture. It shall analyze: (i) the methods suggested by the U.S. Department of Agriculture for the promotion of economical and efficient marketing of agricultural products; and (ii) statistical information applicable to the marketing of Virginia agricultural products. When it is advisable and not inconsistent with the requirements of this chapter or of any other law of the Commonwealth, the Division shall endeavor to adopt any methods of marketing that may be suggested by the U.S. Department of Agriculture.

Code 1950, § 3-530; 1966, c. 702, § 3.1-689; 2008, c. 860.

§ 3.2-4704. Regulations.

The Board may adopt any marketing agreement approved by federal officials under the federal Agricultural Adjustment Act (7 U.S.C. § 1281 et seq.) and similar acts of Congress.

1993, c. 115, § 3.1-690.1; 2008, c. 860.

§ 3.2-4705. Division to disseminate information.

The Division of Marketing shall gather and disseminate information on all subjects relating to the marketing and distribution of Virginia agricultural products, and shall keep producers and consumers informed of the demand and supply and at what markets the various agricultural products can be best handled or procured. The Division shall: (i) publish periodical bulletins that provide the current market prices for Virginia agricultural products in the principal markets of the Commonwealth, and in other markets accessible for the disposition of such products; and (ii) when advisable, provide information as to the available supplies of agricultural products the demand in several markets for such products. The Division may also prepare and distribute bulletins describing the most efficient and economical methods of standardization, storage, packing, transportation, and marketing of agricultural products. The Division shall determine the sources of supply of agricultural products and prepare and publish lists of the names and addresses of producers and consignors and supply this information to interested persons.

Code 1950, § 3-528; 1966, c. 702, § 3.1-687; 1993, c. 115; 2008, c. 860.

§ 3.2-4706. Finding markets for producers.

When notified by producers that agricultural products produced in the Commonwealth cannot be sold or will have to be sacrificed for lack of a ready market, the Division shall investigate and make suggestions to the producers, and may assist the producers in any practicable manner in finding a satisfactory market for the products in question.

Code 1950, § 3-529; 1966, c. 702, § 3.1-688; 1993, c. 115; 2008, c. 860.

§ 3.2-4707. Investigation and correction of improper practices.

The Division shall investigate delays, improper conditions, overcharges, and unfair rates in the transportation of agricultural products, and may institute proceedings in the appropriate courts for the abatement or redress of such injuries; and may institute proper proceedings to prevent restraint of trade or unlawful combinations to fix prices.

Code 1950, § 3-529; 1966, c. 702, § 3.1-688; 1993, c. 115; 2008, c. 860.

§ 3.2-4708. Penalty.

Any person violating any provision of this article, a regulation or marketing agreement adopted pursuant thereto, is guilty of a Class 3 misdemeanor.

1993, c. 115, § 3.1-690.2; 2008, c. 860.

Article 2. Commission Merchants.

§ 3.2-4709. Definitions.

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

"Auction market," "livestock auction market," "livestock sales ring," "livestock auction," or "livestock auction ring" means a place or establishment operated for compensation or profit as a private or public market, consisting of pens, or other enclosures, and their appurtenances, in which livestock are received, held for sale or where livestock is sold or offered for sale either privately or at public auction.

"Commission merchant" means any person, who: (i) operates an auction market; (ii) receives farm products for sale on commission or contracts with the producer for farm products sold on commission or for a fee; (iii) accepts in trust from the producer for the purpose of sale; (iv) sells or offers for sale on commission; (v) solicits consignments of any kind of farm products; or (vi) handles the account of or as an agent of the producer any kind of farm products. No person shall be deemed to be an agent of the producer unless a specific price has been agreed upon by both parties before shipment or delivery by the producer for resale.

"Commission merchant" shall not include: (i) any cooperative corporation or association that is subject to the provisions of Article 2 (§ 13.1-312 et seq.) of Chapter 3 of Title 13.1; (ii) any association or organization of farmers, including produce exchanges, not incorporated under or subject to the provisions of Article 2 (§ 13.1-312 et seq.) of Chapter 3 of Title 13.1, organized and maintained by farmers for mutual help in the marketing of their produce and not for profit; (iii) any person buying vegetables, viticulture, or horticultural farm products for the purpose of reselling these products in dried, canned, or other preserved form; (iv) the sale of farm produce at public auction by a licensed auctioneer, acting as the agent of another to whom such farm produce is consigned; (v) the sale by sheriffs and other officers and fiduciaries and court officials; (vi) seed sold at retail; or (vii) persons licensed pursuant to the provisions of Article 3 (§ 3.2-4738 et seq.) of this chapter.

"Farm produce" or "farm products" means horticultural, viticulture, forestry, dairy, livestock, poultry, bee, and other products ordinarily produced on farms.

"Licensee" means any person who has been granted a license to operate, conduct, or carry on the business of a commission merchant.

Code 1950, § 3-534; 1966, c. 702, § 3.1-692; 1975, c. 505; 1977, c. 21; 2008, c. 860.

§ 3.2-4710. Certain activities exempt from article.

The provisions of this article shall not apply to: (i) the premises of any butcher, packer, or processor who receives livestock exclusively for immediate slaughter; (ii) farm sales; (iii) sales by 4-H clubs; or (iv) sales by livestock breeders' associations or by exposition societies.

Code 1950, § 3-534; 1966, c. 702, § 3.1-692; 1975, c. 505; 1977, c. 21; 2008, c. 860.

§ 3.2-4711. License required; application for license to be in writing; contents.

A. Every person who operates, conducts, or carries on the business of a commission merchant shall obtain a license.

B. Application for license shall be made to the Commissioner in writing, signed and sworn to by the applicant.

C. The application shall include:

1. The name of the locality where the business of commission merchant is to be conducted, the street and number of the building if practicable, and the nature of the products that will be handled by the applicant;

2. If made by a partnership, the full names of each of the partners comprising the partnership, and their respective addresses, and the firm or trade name under which the business is to be conducted;

3. If made by a corporation, whether it is domestic or foreign, the amount of its capital stock as provided in its articles of incorporation, the amount of its capital stock fully paid in, and the names of its officers and those persons authorized to receive and accept service of process and legal notices of all kinds for the applicant.

D. If requested by the Commissioner, an applicant shall demonstrate his character, responsibility, and good faith in seeking to carry on a commission merchant's business within the Commonwealth.

Code 1950, §§ 3-536, 3-537; 1966, c. 702, §§ 3.1-694, 3.1-695; 2008, c. 860.

§ 3.2-4712. Fee and bond to accompany license.

Applications shall be accompanied by a license fee of $10, and a good and sufficient bond, approved by the Commissioner, in the amount of $3,000 for all applications other than for livestock auction markets, in which case the application, together with the fee, shall be accompanied by a bond in the sum of $5,000, when the average daily gross commission business is $5,000 or less, with $1,000 added to the bond for each additional $5,000 average daily gross commission business done for the previous year with a maximum bond of $10,000 that entitles the applicant to a license to expire on December 31.

Code 1950, § 3-538; 1952, c. 387; 1966, c. 702, § 3.1-696; 2008, c. 860.

§ 3.2-4713. Applications for renewal licenses.

Each licensee shall renew his license. The renewal license shall expire one year from the date of expiration of the old license. The renewal application shall be accompanied by evidence of payment of the renewal premium continuing the bond in full force and effect, and the payment of a fee of $10 on or before the first day of January following the date of expiration of the previous license. All applications for renewal licenses shall be made in the same manner as application for original license.

Code 1950, § 3-539; 1966, c. 702, § 3.1-697; 2008, c. 860.

§ 3.2-4714. Disposition of sums received for licenses.

All sums received by the Commissioner for such license fees shall be paid into the state treasury to the credit of the general fund.

Code 1950, § 3-540; 1966, c. 702, § 3.1-698; 2008, c. 860.

§ 3.2-4715. Certified copy of license; fee; posting of license during sale periods.

A certified copy of an issued license may be obtained by the holder of the original upon payment of a fee of $1, and the original or a certified copy of the license shall be posted during sale periods in a conspicuous place on the premises where the business is conducted.

Code 1950, § 3-553; 1966, c. 702, § 3.1-711; 2008, c. 860.

§ 3.2-4716. Bond not required for certain auction sales of livestock.

No bond shall be required of any person operating a livestock auction market or stockyard that has been posted by the U.S. Department of Agriculture and is being operated under and pursuant to the terms and provisions of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended.

Code 1950, § 3-541; 1960, c. 250; 1966, c. 702, § 3.1-699; 2008, c. 860.

§ 3.2-4717. Agreements with U.S. Department of Agriculture; powers and duties of Commissioner as to bonds filed with U.S. Department of Agriculture.

The Commissioner may enter into agreements with the U.S. Department of Agriculture as are necessary to effectuate the purposes of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended. The Commissioner may act as trustee of the bonds or other security filed with the U.S. Department of Agriculture, and in such capacity the Commissioner may: (i) settle, allow or reject claims arising against the bonds or other security; (ii) rely on the investigative reports and recommendations of the U.S. Department of Agriculture; and (iii) use the administrative powers and processes of this article to settle claims. The Commissioner may institute and prosecute suits or actions in the name of the Commonwealth on behalf of claimants known and approved by the Commissioner in any appropriate court. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1976, c. 44, § 3.1-699.1; 1985, c. 354; 2008, c. 860.

§ 3.2-4718. Execution and terms of bond; action thereon.

The bond shall be executed by the applicant as principal and by a surety company qualified and authorized to do business in the Commonwealth as surety or by such personal surety as may be approved by the circuit court of the locality where the applicant resides or has his principal office. The bond shall be conditioned upon compliance with the provisions of this article and upon the faithful and honest handling of farm products in accordance with the terms of this article. The bond shall be to the Commonwealth in favor of every consignor of farm products. Any consignor of farm products claiming to be injured by the fraud, deceit or negligence of any commission merchant may bring action upon the bond against either the principal, or the surety, or both in an appropriate court to recover the damages caused by such fraud, deceit or negligence, or the failure to comply with the provisions of this article, or to make prompt and accurate settlement with the consignor.

Code 1950, § 3-542; 1966, c. 702, § 3.1-700; 2008, c. 860.

§ 3.2-4719. Duties and powers of Commissioner with respect to bonds.

The Commissioner may accept the proceeds from any bond and deposit the proceeds in the state treasury at interest in favor of the bond claimants. The Commissioner may institute and prosecute suits or actions in the name of the Commonwealth on behalf of claimants approved by him in any appropriate court for any purpose in connection with the collection or distribution of the bond or its proceeds. It shall be the duty of any person having a claim against a commission merchant to notify the Commissioner of his claim. The Commissioner shall have no duty to prosecute any claim unless he has received such notice and believes the claim is valid. If the Commissioner believes the claim to be invalid, he shall notify the claimant. The claimant shall then have his remedy pursuant to § 3.2-4718. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1985, c. 354, § 3.1-700.1; 2008, c. 860.

§ 3.2-4720. Schedule of commissions and charges to be filed.

The applicant shall file with the Commissioner at the time of furnishing the bond a schedule of his maximum commissions and charges for service in connection with the produce handled on account of or as agent for the parties. Such commissions and charges shall not be changed for one year thereafter, except by a written contract between the commission merchant and the consignors of farm products. A person operating a livestock auction market or stockyard that has been posted by the U.S. Department of Agriculture and is being operated pursuant to the provisions of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended, may change his schedule of maximum commissions and charges if such changes are filed with the U.S. Department of Agriculture and are approved. These changes shall be posted with the Commissioner.

Code 1950, § 3-543; 1966, c. 702, § 3.1-701; 1968, c. 306; 2008, c. 860.

§ 3.2-4721. Investigation of transactions by Commissioner.

The Commissioner, upon the verified complaint of any interested party shall, or upon his own motion may, investigate:

1. Any transaction involving solicitation, receipt, sale, or attempted sale of farm products by any person acting or attempting to act as a commission merchant;

2. The failure of any commission merchant to make proper and true account of sales and settlement as required in this article;

3. Any transaction in which produce consigned to a commission merchant is disposed of to a person composed substantially of the same persons as stockholders, members, or others, who compose the commission merchant;

4. The intentional making of false statements by a commission merchant as to condition, grade, or quality of any farm products received or in storage;

5. The intentional making of false statements by a commission merchant as to market condition;

6. The failure of any commission merchant to make payment for farm products within the time required by this article; or

7. Any other injurious transaction arising out of the sale of farm produce on commission.

Code 1950, § 3-544; 1966, c. 702, § 3.1-702; 2008, c. 860.

§ 3.2-4722. Complaint to Commissioner by consignor; Commissioner's action.

A. When a consignor of farm products to a commission merchant files a complaint with the commission merchant within 90 days after date of sale, and has failed to obtain a satisfactory settlement of the complaint within 10 days after the filing of the complaint, a complaint setting forth the facts may be filed with the Commissioner, who shall undertake a settlement of the matter.

B. If the Commissioner is unable to settle the matter to the satisfaction of the parties involved, within a reasonable time, he shall, after giving the parties at least five days' notice as to time and place, proceed to hear evidence concerning the matter. The hearing shall occur in the city or town where the business of the commission merchant is located or where the transaction complained of occurred, or at the option of the parties, in such other place as they may mutually agree. The Commissioner shall either dismiss the complaint or enter an order against the commission merchant to afford the consignor relief. Any such order shall be complied with within the time specified by the Commissioner but shall not be less than five days.

Code 1950, §§ 3-545, 3-546; 1966, c. 702, §§ 3.1-703, 3.1-704; 1976, c. 164; 2008, c. 860.

§ 3.2-4723. Right of entry; administration of oaths; testimony.

The Commissioner may:

1. Conduct investigations relative to the complaint or matter being investigated, and he shall have at all times unimpeded access to all buildings, yards, warehouses, storage and transportation facilities in which any farm products are kept, stored, handled, or transported;

2. Administer oaths and take testimony, and issue subpoenas requiring the attendance of witnesses before him, together with all books, memoranda, papers, and other documents, articles or instruments; and

3. Compel the disclosure by witnesses of all facts known to them relative to the matters under investigation.

Code 1950, §§ 3-547, 3-548; 1966, c. 702, §§ 3.1-705, 3.1-706; 2008, c. 860.

§ 3.2-4724. Grounds for refusal or revocation of license.

The Commissioner may refuse to grant a license, delay the issuance of a license, or revoke any license when he finds that:

1. A money judgment that has been entered against a commission merchant has not been satisfied;

2. False, fraudulent, or improper charges or returns have been made by the licensee for the handling, sale, or storage of farm products, or for the rendering of any related service;

3. The licensee has failed to render a true account of sales, or to settle promptly and within the time and in the manner required by this article;

4. The licensee has made false or misleading statements as to the grade, condition, quality or quantity of farm products received, handled, stored or held by him for sale on commission;

5. The licensee has made false or misleading statements as to market conditions;

6. There has been a combination to fix prices;

7. The licensee has, directly or indirectly, purchased for his or its own account farm products received by him or it, upon consignment, without prior authority from consignor in writing and at a fixed price agreed to by the consignor. This subdivision shall not apply to operators of livestock auction markets who are prohibited from purchasing consigned livestock under the federal Packers and Stockyards Act of 1921 (42 Stat. 159), as amended;

8. The licensee has made fictitious sales or has been guilty of collusion to defraud the consignor;

9. The licensee has reconsigned the farm products to another person without first obtaining the written consent of the consignor or written notice has not been given by the licensee to consignor that all or a part of the shipment was reconsigned;

10. The licensee sells farm products consigned to him or it, to another person owned or controlled by the licensee, or in which the licensee may have a financial or other interest, either directly or indirectly, and no notice has been given, in writing, to the consignor by the licensee that all or a part of such shipment was sold to a person in which the licensee has a financial or other interest;

11. The licensee was intentionally guilty of fraud or deception in the procurement of the license;

12. The licensee has failed to file with the Commissioner a schedule of his maximum commissions and other charges for services for the produce handled on account of or as agent of another as prescribed in this article, prior to the first day of February of each year;

13. The licensee has failed to obey and comply with any order of the Commissioner entered pursuant to the provisions of subsection B of § 3.2-4722 within the time specified in such order, or in the case of an appeal within 10 days of the time the Commissioner's order became final;

14. The licensee has failed to comply with any assurance the Commissioner has required pursuant to subsections C and D of § 3.2-4711; or

15. The licensee, his agents, contractors, or employees are guilty of violating any provision of this section.

Code 1950, § 3-551; 1966, c. 702, § 3.1-709; 1979, c. 389; 2008, c. 860.

§ 3.2-4725. Publication of revocation.

When a license is revoked, a notice of the revocation and the reason for the revocation shall be published once a week for two successive weeks in one or more daily papers selected by the Commissioner and the Department shall post notice of the revocation on its website for a period of two weeks from the date of the revocation.

Code 1950, § 3-552; 1966, c. 702, § 3.1-710; 2008, c. 860.

§ 3.2-4726. Failure to comply with orders of Commissioner constitutes contempt.

All parties disobeying the orders or subpoenas of the Commissioner are guilty of contempt and shall be certified to an appropriate court for punishment.

Code 1950, § 3-549; 1966, c. 702, § 3.1-707; 2008, c. 860.

§ 3.2-4727. Copies of papers in Commissioner's office as prima facie evidence.

Copies of all records, inspection certificates, certified reports and all papers on file in the office of the Commissioner shall be prima facie evidence of the matter contained.

Code 1950, § 3-550; 1966, c. 702, § 3.1-708; 2008, c. 860.

§ 3.2-4728. Appeal from orders and actions of Commissioner.

Any action of the Commissioner: (i) entering any order pursuant to subsection B of § 3.2-4722; (ii) refusing to grant a license; (iii) revoking a license already granted to a commission merchant; or (iv) refusing to renew a license, shall be subject to the right of appeal in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, § 3-554; 1966, c. 702, § 3.1-712; 1976, c. 164; 1986, c. 615; 2008, c. 860.

§ 3.2-4729. Records to be kept by commission merchant.

Every commission merchant, having received any farm products for sale on commission, shall promptly maintain a complete and true record, showing in detail the following with reference to the handling, sale, or storage of such farm products:

1. The name and address of the consignor;

2. The date received;

3. The condition, grade, and quantity on arrival;

4. The date of such sale for the account of the consignor;

5. The sale price;

6. An itemized statement of the charges to be paid by the consignor in connection with the sale;

7. A lot number or other identifying mark that shall appear on all sales tags or tickets or on any other essential records needed to show the sale price of the products; and

8. Records of auction sales of farm produce or farm products, including sales tags, tickets, or bills, which shall be sequentially numbered and each such sequentially numbered record shall be properly accounted for in the operations of the commission merchant. Any record that is altered shall bear the full signature of the person authorized to make, and who is responsible for, the alteration.

Code 1950, § 3-555; 1966, c. 702, § 3.1-713; 1979, c. 389; 2008, c. 860.

§ 3.2-4730. Detailed statements shall be kept of claims for overcharges or damages filed by commission merchant for consignor.

A detailed statement shall be kept of the filing of any claim that has or may be filed by the commission merchant against any person for overcharges or for damages resulting from the injury or deterioration of farm products by the act, neglect, or failure of such person. Such records shall be open for inspection by the Commissioner and the consignor of farm products for whom such claim is made. The money returns, if any, collections, or damages received by the commission merchant for and on behalf of consignor of farm products by reason of the overcharges, damages or deterioration shall immediately be paid to the consignor of farm products less charges for collection, in accordance with the schedule of charges filed under § 3.2-4720.

Code 1950, § 3-556; 1966, c. 702, § 3.1-714; 2008, c. 860.

§ 3.2-4731. Record and account, together with remittance for each sale, to be delivered to consignor.

A copy of the record and account of sales of farm products, together with remittances in full of the amount realized by such sales, less the agreed upon commissions and other charges, shall be delivered to the consignor upon the completion of the sale. All moneys received by the commission merchant in payment for any consignment of farm products, less the agreed upon commission and other charges, shall be paid to the consignor within 10 days after receipt of the moneys by the commission merchant, unless otherwise agreed in writing. The names and addresses of purchasers need not be given unless demanded in cases of complaint.

Code 1950, § 3-557; 1966, c. 702, § 3.1-715; 2008, c. 860.

§ 3.2-4732. Copies of records to be kept by commission merchant.

Every commission merchant shall retain a copy of all records, including sales tags or tickets, account of sales, or other records covering each transaction for a period of three years from the date of the transaction. The copy shall at all times be available for, and open to, confidential inspection by the Commissioner, and the interested consignor or his authorized representative.

Code 1950, § 3-558; 1966, c. 702, § 3.1-716; 1968, c. 306; 1979, c. 389; 2008, c. 860.

§ 3.2-4733. Certificate establishing condition, quality, and grade to be furnished by Commissioner in event of dispute.

If there is a dispute or disagreement between a consignor and a commission merchant arising at the time of delivery as to condition, quality, grade, pack, quantity or weight of any lot, shipment or consignment of farm products, the Commissioner shall furnish, upon the payment by the requesting party of the necessary expenses, a certificate establishing the condition, quality, grade, pack, quantity or weight of such lot, shipment, or consignment. The certificate shall be prima facie evidence in all courts of the Commonwealth as findings at the time such inspection was made. The burden of proof shall be upon the commission merchant to prove the correctness of his accounting as to any transaction that may be questioned.

Code 1950, § 3-559; 1966, c. 702, § 3.1-717; 2008, c. 860.

§ 3.2-4734. Duty of attorney for the Commonwealth.

It shall be the duty of the attorney for the Commonwealth to prosecute all violations of this article.

Code 1950, § 3-561; 1966, c. 702, § 3.1-719; 2008, c. 860.

§ 3.2-4735. Venue.

Civil suits and criminal prosecutions arising by virtue of any provision of this article may be commenced and tried in: (i) the city or county where the products were received by the commission merchant; (ii) the city or county where the principal place of business of the commission merchant is located within the Commonwealth; or (iii) the city or county where the violation occurred.

Code 1950, § 3-562; 1966, c. 702, § 3.1-720; 2008, c. 860.

§ 3.2-4736. License required.

A. It is unlawful for any person to act as, operate, or carry on the business of a commission merchant without first obtaining a license.

B. Any person who violates this section is guilty of a Class 1 misdemeanor.

Code 1950, § 3-535; 1966, c. 702, § 3.1-693; 2008, c. 860.

§ 3.2-4737. Offenses and punishment.

Any person who commits any of the following acts is guilty of a Class 1 misdemeanor:

1. Imposes false charges for handling or for services in connection with farm products;

2. Fails to account promptly, correctly, fully and properly and to make settlement as provided in this article;

3. Makes false and misleading statements as to market conditions with the intent to deceive;

4. Makes fictitious sales or collusion to defraud the consignor, or enters into any combination to fix prices;

5. Directly or indirectly purchases for his or its own account, farm products, received by him or it on consignment without prior authority from the consignor in writing. This subsection shall not apply to the operators of livestock auction markets who are prohibited from purchasing consigned livestock under the federal Packers and Stockyards Act of 1921 (42 Stat. 159), as amended;

6. Intentionally makes false statements as to grade, condition, markings, quality, or quantity of farm products shipped or packed;

7. Reconsigns farm products as have been consigned to him to another person, unless consent of the consignor has been first obtained in writing, or notice given in writing to the consignor by the licensee that all or a part of such shipment was reconsigned;

8. Sells farm products consigned to him to another person owned or controlled by him, or in which the licensee may have a financial or other interest, either directly or indirectly, unless notice is given, in writing, to the consignor by the commission merchant that all or a part of such shipment was sold to a person in which the licensee has a financial or other interest;

9. Fraudulently or deceptively obtains a license;

10. Fails or neglects to give written notice immediately to the Commissioner and the surety on the bond of the commission merchant, of any changes or alterations in the style, name or personnel of the person to whom such license has been issued; or

11. Fails to comply with the provisions of this article.

Code 1950, § 3-560; 1966, c. 702, § 3.1-718; 1979, c. 389; 2008, c. 860.

Article 3. Dealers in Agricultural Produce.

§ 3.2-4738. Definitions.

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

"Agricultural produce" means fruits and vegetables.

"Bond" means a bond executed by a surety company licensed to do business in the Commonwealth.

"Buying brokerage transaction" means a transaction in which the dealer acts as agent for the grower in the purchase of agricultural produce at the day's price for the agricultural produce purchased in the transaction.

"Cash buyer" means any person who obtains from the producer, or his representative, title, possession or control of any agricultural produce or contracts for the title, possession or control of any agricultural produce, and who buys any agricultural produce by paying to the producer at the time of obtaining possession or control, or at the time of contracting for the title, possession or control of any agricultural produce, the agreed price of such agricultural produce in coin or currency, certified checks, cashier's checks or drafts issued by a bank.

"Consignment" means any transfer of agricultural produce by the seller to the custody of another person who acts as the agent for the seller for the purpose of selling such agricultural produce.

"Day's price" means the market price of any agricultural produce on a given day as determined by the U.S. Department of Agriculture and published by the Division.

"Dealer" means any person who buys, sells, solicits for sale, processes for sale or resale, resells, exchanges, negotiates, purchases or contracts for processing or transfers any agricultural produce of a producer. The term shall exclude: (i) any person operating solely on a commission basis in Virginia as a licensed commission merchant under the provisions of Article 2 of this chapter; (ii) farmers or groups of farmers selling agricultural produce grown by them; (iii) any person who operates strictly as a cash buyer; (iv) any processor who processes agricultural produce within Virginia; and (v) any person who buys agricultural produce for wholesale or retail in Virginia.

"Grower's agent transaction" means a transaction or series of transactions in which the dealer agrees to sell the entire crop produced by one grower during one season, at a price to be agreed upon between the dealer and the grower.

"Joint account transactions" means a transaction between a dealer and grower in which the dealer pays the grower based on the price for which the agricultural produce sells in relation to the price agreed upon between the dealer and grower.

"Processor" means any person operating any plant in the Commonwealth that freezes, dehydrates, cans, or otherwise changes the physical form or characteristics of agricultural produce.

"Producer" means any person who produces agricultural produce in Virginia.

1968, c. 598, § 3.1-722.1; 1970, c. 400; 1972, c. 646; 1994, c. 340. 2008, c. 860.

§ 3.2-4739. License required; application for license and license fee; license renewals; list of dealers.

A. Every dealer shall obtain a license to operate and conduct business.

B. Such persons shall on or before May 1 of each year file a written application for a license with the Commissioner for the licensing year of May 1 to April 30. Each dealer shall pay a license fee of $50 per licensing year. Each license shall expire on April 30 of the licensing year for which the license was issued. The license shall be valid through May 31 of the next licensing year or until issuance of the renewal license, whichever occurs first, if the holder shall have filed a renewal application and a new bond or a continuation certificate continuing his current bond with the Commissioner on or before April 30 of the licensing year for which the Commissioner issued the license Any dealer proposing to transact business within the Commonwealth who fails to file such written application for a license and pay the licensing fee on or before May 1 shall pay a $50 late fee in addition to the license fee. Any person who engages in business as a dealer before obtaining a license shall be subject to a $250 penalty, in addition to the license fee and the late fee.

C. The application for a license shall be on a form furnished or approved by the Commissioner and shall contain the following information along with such other information as the Commissioner shall require on the form:

1. The name and address of the applicant and that of its local agent, if any, and the location of its principal place of business within the Commonwealth;

2. The kinds of agricultural produce the applicant proposes to handle; and

3. The type of produce business proposed to be conducted.

D. Each licensee shall renew his licenses on or before May 1 of each year for the licensing year May 1 to April 30. The licensee shall make application to the Commissioner on a form furnished or approved by the Commissioner and the licensee is subject to the provisions of subsection B.

E. The Commissioner may publish a list of dealers licensed under this article.

1968, c. 598, §§ 3.1-722.2, 3.1-722.3; 1994, c. 340, § 3.1-722.6:1; 2008, c. 860.

§ 3.2-4740. Bond required.

Each application shall be accompanied by a good and sufficient bond in the minimum sum of $1,000 or in such greater amount as is equal to the maximum amount of gross business the applicant does in any month in the Commonwealth during the preceding licensing year, but in no event shall the amount of bond required exceed $40,000.

1968, c. 598, § 3.1-722.4; 1972, c. 646; 1977, c. 21; 1994, c. 340; 2008, c. 860.

§ 3.2-4741. Execution, terms and form of bond; action on bond.

A. The bond shall be executed by the applicant as principal and by a surety company authorized and qualified to do business in the Commonwealth as surety. The applicant shall file on or before May 1 of each licensing year a copy of the bond with the Commissioner and the Commissioner shall be designated as the trustee of this bond. If the bond is not filed by the due date, and if the applicant notifies the Commissioner that the bond application is in process and furnishes the Commissioner a copy of the dated bond application, the Commissioner may grant a grace period of 15 working days for the applicant to file the bond without penalty. Any applicant who fails to file a bond by the 15th day of the grace period, shall be subject to all applicable late fees and penalties as stated in §§ 3.2-4739 and 3.2-4751 before a license will be issued.

B. The bond shall be upon a form prescribed or approved by the Commissioner and shall be conditioned to secure the faithful accounting for payment to producers, agents or representatives, of all agricultural produce purchased, handled or sold by the dealer. Any producer claiming to be injured by the nonpayment, fraud, deceit or negligence of any dealer may bring action upon the bond against the principal, or the surety, or both in an appropriate court.

1968, c. 598, § 3.1-722.5; 1994, c. 340; 2008, c. 860.

§ 3.2-4742. Duties and powers of Commissioner with respect to bonds.

The Commissioner may accept the proceeds from any bond on which he is trustee and deposit the proceeds in the state treasury with interest in favor of the bond claimants. The Commissioner may institute and prosecute suits for actions in the name of the Commonwealth on behalf of the claimants known and approved by him in any appropriate court for any purpose in connection with the collection or distribution of the bond or its proceeds. It shall be the duty of any person having a claim against a produce dealer to notify the Commissioner of his claim. The Commissioner shall have no duty to prosecute any claim unless he has received notice and believes the claim is valid. If the Commissioner believes the claim is invalid, he shall notify the claimant. The claimant shall then have his remedy pursuant to § 3.2-4741. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1985, c. 354, § 3.1-722.5:1; 2008, c. 860.

§ 3.2-4743. Agricultural Dealers Fund established; disposition of funds.

There is hereby created in the state treasury a special nonreverting fund to be known as the Agricultural Dealers Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys received by the Commissioner for license fees, license renewals, late fees, and penalties 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. The Fund shall be used for the enforcement and administration of this article. Disbursements from the Fund shall be made by the State Comptroller at the written request of the Commissioner.

1968, c. 598, § 3.1-722.7; 1994, c. 340; 2008, c. 860.

§ 3.2-4744. Records to be kept by dealers.

Every dealer that has received any agricultural produce from a producer shall keep a complete and true record and retain it for three years, showing in detail the following with reference to the handling or sale of such agricultural produce, along with any other information as the Commissioner may require as outlined in the record inspection form:

1. The name and address of the producer;

2. The date received;

3. The condition, grade (if officially graded), and quantity on receipt;

4. The date of resale or transfer of the produce to another; and

5. The sale price.

1968, c. 598, § 3.1-722.8; 1994, c. 340; 2008, c. 860.

§ 3.2-4745. Copies of contracts to be filed with Commissioner.

Copies of any contract between any producer and dealer or between any dealer and buyer made in advance of the harvesting season to supply agricultural produce shall be filed with the Commissioner within 10 days of the signing of such contract.

1972, c. 646, § 3.1-722.14; 2008, c. 860.

§ 3.2-4746. Commissioner's authority to inspect.

A. Upon the complaint of any person, the Commissioner may inspect the books and records of any licensed dealer at any time during operating hours and shall have free access to the place where the business is operated.

B. Upon the complaint of any person or upon his own initiative, the Commissioner may inspect the books and records of any person, other than a licensed dealer, who solicits, or attempts to solicit, receipt, sale, or transfer of agricultural produce. The Commissioner shall conduct such inspections at any time during operating hours. The Commissioner t shall have the right of access to the place where the person's business is operated, or the place where his books and records are kept.

1968, c. 598, § 3.1-722.9; 1970, c. 400; 1972, c. 646; 1994, c. 340; 2008, c. 860.

§ 3.2-4747. Refusal or revocation of license.

A. The Commissioner may refuse to grant a license, delay the issuance of a license, or revoke or suspend any license already granted when he finds that the dealer:

1. Has not satisfied a money judgment entered against him;

2. Has failed to promptly and properly account or to promptly and properly pay for agricultural produce;

3. Has made a false or misleading statement as to market conditions or the service rendered;

4. Has perpetrated a fraud or engaged in deceit in procuring the license;

5. Has engaged in any fraudulent or deceitful practices in his dealings with producers; or

6. Has failed to comply with any provisions of this article or any regulations adopted by the Board.

B. For the purposes of this section the terms:

"Promptly and properly account," except when otherwise specifically agreed upon in writing by the parties, means providing a complete and true accounting: (i) in connection with buying brokerage transactions, within 24 hours after the date of delivery of the agricultural produce to their first destination; (ii) in connection with consignment or joint account transactions, within 10 days after the date of final sale of each shipment. However, if a grower's agent, while conducting a grower's agent transaction, or a shipper distributes individual lots of produce for or on behalf of others, his accounting shall be made within five days after the date he is paid by the purchaser or receives the accounting on consigned or joint account transactions. If a grower's agent, while conducting a grower's agent transaction, or shipper harvests, packs, or distributes entire crops or multiple lots therefrom for or on behalf of others, he shall make accountings within seven days following shipment by the dealer; and (iii) in connection with a consignment or joint account transaction, within 10 days after the date of receipt of payment of a carrier claim filed. Nothing in this section shall prohibit cooperative associations from accounting to their members on the basis of seasonal pools or other arrangements provided by their regulations or bylaws.

"Promptly and properly pay" means payment within 30 days of the receipt of the produce by the dealer, unless a written agreement signed by both parties expressly provides or permits otherwise. In the case of joint transactions, if the produce sells at or for less than the agreed price, the dealer pays the agreed price to the grower. If the produce sells for more than the agreed price, the dealer shall pay to the grower one-half of the difference between the sale price and the agreed price.

1968, c. 598, § 3.1-722.10; 1972, c. 646; 1980, c. 277; 1994, c. 340; 2008, c. 860.

§ 3.2-4748. Hearing before the Commissioner.

Before the Commissioner refuses or revokes a license, the applicant or licensee shall have the right to review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1970, c. 400, § 3.1-722.12; 1994, c. 340; 2008, c. 860.

§ 3.2-4749. Commissioner may enjoin; Attorney General may prosecute.

The Commissioner may bring an action to enjoin the violation or threatened violation of any provision of this article, or any regulation adopted hereunder, in the circuit court of the city or county where the violation occurs or is about to occur. If the violation affects more than one locality, the action may be brought in the Circuit Court of the City of Richmond. The Commissioner may request either the attorney for the Commonwealth or the Attorney General to bring action under this section. The Attorney General is authorized to prosecute any violation of this article.

1968, c. 598, § 3.1-722.11; 1994, c. 340; 2008, c. 860.

§ 3.2-4750. Operating without a license.

It is unlawful for any dealer to operate and conduct a business without first having obtained a license.

1968, c. 598, § 3.1-722.2; 1994, c. 340; 2008, c. 860.

§ 3.2-4751. Penalty for violation of article.

Any person who intentionally violates any provision of this article or regulations promulgated hereunder is guilty of a Class 1 misdemeanor.

1968, c. 598, § 3.1-722.11; 1994, c. 340; 2008, c. 860.

§ 3.2-4752. Reciprocal agreements with other states and federal government.

The Commissioner may enter into reciprocal agreements with appropriate officials of other states or of the federal government for the purpose of exchanging any information of violations of this article or laws of other states or the federal government that have similar purposes as this article.

1972, c. 646, § 3.1-722.15; 2008, c. 860.

Article 4. Dealers in Grain Products.

§ 3.2-4753. Definitions.

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

"Cash buyer" means any person who pays the producer, or his representative, at the time of obtaining title, possession or control of grain, the agreed price of such grain in coin or currency, certified checks, cashier's checks, or drafts issued by a bank.

"Contract" means a binding agreement between the grain dealer and the producer that describes the terms and conditions of the delivery of grain and the purchase price.

"Deferred payment" means that the purchase price for grain delivered by the producer is fixed and specified in the contract, but payment is not received by the producer until a mutually agreed upon subsequent date.

"Full market value" means the value recognized as the average weekly price per bushel for the Commonwealth as quoted by the Department.

"Grain" means grains including corn (maize), wheat, rye, oats, barley, flaxseed, soybeans, and sunflower.

"Grain bank" means grain owned by a producer and held temporarily by the dealer for use in the formulation of feed and returned to the producer on demand as feed or whole grain.

"Grain dealer" means any person who buys, solicits for sale or resale, processes for sale or resale, contracts for storage or exchange, or transfers grain of a Virginia producer. The term shall exclude farmers or groups of farmers buying grain for consumption on their farms.

"Grain exchange" means grain owned by a producer and held temporarily by the dealer for use in the formulation of processed flour to be returned to the producer on demand as flour or whole grain.

"Loss" means any monetary loss to a producer as a result of doing business with a dealer that shall include bankruptcy, embezzlement, theft or fraud.

"Price later" means that the actual purchase price is not fixed at the time of delivery, but allows the producer to choose a bid price on any business day during a stated time period as agreed between the parties.

"Producer" means any person in Virginia who produces grain.

"Storage" or "holding" means any method by which grain owned by another is held for the owner by a person who is not the direct owner, except for transportation thereof.

1972, c. 296, § 3.1-722.16; 1982, c. 187; 2008, c. 860.

§ 3.2-4754. License required; application for license or renewal.

A. No person shall act as a grain dealer without first having obtained a license.

B. Every grain dealer proposing to transact business within the Commonwealth shall annually on or before January 1, file a written application for a license or for the renewal of a license with the Commissioner. The application shall be on a form furnished by the Commissioner and shall contain the following information and such other relevant information as the Commissioner shall require:

1. The name and address of the applicant and that of its local agent or agents, if any, and the location of its principal place of business within the Commonwealth;

2. The kinds of grain the applicant proposes to handle; and

3. The type of grain business proposed to be conducted.

1972, c. 296, §§ 3.1-722.17, 3.1-722.18; 2008, c. 860.

§ 3.2-4755. License and renewal fee; bond or irrevocable letter of credit required; exemption.

A. All applications a for license or license renewal shall be accompanied by a license fee of $40, $10 for each branch location and agent, and a good and sufficient bond in an amount of $2,000 or an amount equal to the maximum amount of gross business done in any month in the Commonwealth during the preceding year by the applicant, whichever is greater, but in no event shall the amount of bond required exceed $40,000. An irrevocable letter of credit for the full amount of required bond may be submitted in lieu of a surety bond. A person, who upon written request shows proof satisfactory to the Commissioner that he is a cash buyer, shall be exempted from the bonding or irrevocable letter of credit requirements. The exemption shall be granted within 20 days of the receipt of the exemption request, unless the Commissioner requests the dealer to provide additional necessary information or unless the request is denied.

B. Any licensed grain dealer who fails to apply and qualify for the renewal of a license on or before the date of expiration, shall pay a penalty of $25, which shall be added to the original license fee and shall be paid by the applicant before the renewal may be issued.

1972, c. 296, §§ 3.1-722.19, 3.1-722.21; 1982, c. 187; 2008, c. 860.

§ 3.2-4756. Execution, terms and form of bond or irrevocable letter of credit; action on bond or irrevocable letter of credit; investigation of complaints.

The bond shall be executed by the applicant as principal and by a surety company authorized and qualified to do business in the Commonwealth as surety. An irrevocable letter of credit may be issued on such terms as the Commissioner may require. The Commissioner shall be designated as the trustee of the bond or beneficiary of the irrevocable letter of credit, and a copy of the bond or irrevocable letter of credit shall be filed with him. The bond shall be in a form prescribed or approved by the Commissioner and shall be conditioned to secure the faithful accounting for payment to producers, agents or representatives, of all grain purchased, stored, handled or sold by the dealer. Any producer claiming to be injured by the nonpayment, fraud, deceit or negligence of any dealer may bring action upon the bond against the principal, or the surety, or both in an appropriate court. In the event the Commissioner receives written complaint from an injured producer of nonpayment, fraud, deceit or negligence of a dealer, the Commissioner may investigate such complaint and make recommendations to the surety company as to the culpability of the dealer, if any.

1972, c. 296, § 3.1-722.20; 1982, c. 187; 2008, c. 860.

§ 3.2-4757. Duties and powers of Commissioner with respect to bonds.

The Commissioner may accept the proceeds from any bond on which he is trustee or any letter of credit on which he is beneficiary, and deposit the proceeds in the state treasury at interest in favor of the claimants. The Commissioner may institute and prosecute suits or action in the name of the Commonwealth on behalf of claimants known and approved by him in any appropriate court for any purpose in connection with the collection or distribution of the proceeds. It shall be the duty of any person having a claim against a grain dealer to notify the Commissioner of his claim. The Commissioner shall have no duty to prosecute any claim unless he has received such notice and believes the claim is valid. If the Commissioner believes the claim to be invalid, he shall notify the claimant. The claimant shall then have his remedy pursuant to § 3.2-4756. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1982, c. 187, § 3.1-722.20:1; 1985, c. 354; 2008, c. 860.

§ 3.2-4758. Grain Dealers Licensing and Bonding Fund established; disposition of fees and penalties.

There is hereby created in the state treasury a special nonreverting fund to be known as the Grain Dealers Licensing and Bonding Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All fees and penalties for renewals payable under this article shall be collected by the Commissioner and 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 for the sole purpose of enforcement of this article.

1972, c. 296, § 3.1-722.22; 1975, c. 531; 1982, c. 187; 2008, c. 860.

§ 3.2-4759. Records to be kept by dealers.

A. Every grain dealer in the Commonwealth shall keep such records of grain transactions for such reasonable periods of time and in accordance with good business practices as may be required by the Board.

B. Written agreements, in addition to such other information as may be required, shall contain the following:

1. The seller's name and address;

2. The conditions of delivery;

3. The amount and kind of grain delivered;

4. The price per bushel or basis of value; and

5. The date payment is to be made.

1972, c. 296, § 3.1-722.23; 1982, c. 187; 2008, c. 860.

§ 3.2-4760. Grounds for refusal or revocation of license.

The Commissioner may refuse to grant or renew any license, or revoke any license if he finds that the grain dealer:

1. Has not satisfied a final money judgment entered against him;

2. Has failed to promptly and properly account and pay for in full within 10 calendar days of the receipt of the grain from the producer, unless a written agreement signed by both parties expressly provides or permits otherwise. The prompt and proper accounting of and payment for grain shall include the following:

a. Any grain dealer who purchases grain from a producer shall deliver to the producer or his duly authorized representative the full amount of the purchase price, within the time specified in this subdivision. Payment shall occur either by transferring a check in the full amount to the producer or his authorized agent at the point of transfer of possession, wiring transfer funds to the producer's account for the full purchase price, or by depositing a check in the United States mail for the full amount properly addressed to the producer and in an envelope postmarked within the time specified in this section.

b. Any grain dealer who sells grain deposited in his grain storage facility by a producer shall promptly notify the producer or his duly authorized representative of the sale, and shall deliver to the producer or his authorized representative the full amount of the purchase price within the time specified in this subdivision. The time limit may be extended for good cause and with the written consent of the depositor. Nonpayment by the purchaser shall not constitute "good cause" under this section.

c. Any grain dealer who enters into a deferred payment, price later, or contract transaction with a producer shall have the transaction in writing and signed by both parties and shall deliver a copy of the transaction to the producer or his duly authorized representative. Upon conclusion of the written agreement transaction, the dealer shall deliver to the producer or his authorized representative the full amount of the purchase price within the time specified in this subdivision;

3. Has failed to maintain business records of his grain transactions as required;

4. Has failed to post current discounts where they can readily be reviewed by the producer or his representative;

5. Upon the request of the producer or his representative, has failed to notify the producer or his representative at the time of delivery of all discounts and deductions applied;

6. Has failed to file annually with the Commissioner the discount schedules for each grain purchased, including the effective date of the purchase, or has failed to make available upon request of the Commissioner during normal business hours any changes in the discount schedules that have been filed;

7. Has engaged in fraudulent or deceptive practices in the transaction of his business as a dealer;

8. Has failed to state on producers receipts the type of grain transactions that shall include storage, grain bank, grain exchange, price later, deferred payment, and contract;

9. Has failed to maintain a bond or letter of credit as required; or

10. Has violated any regulation adopted by the Board.

1972, c. 296, § 3.1-722.24; 1975, c. 85; 1982, c. 187; 2008, c. 860.

§ 3.2-4761. Procedure for refusal or revocation of license; notice of hearing.

Before the Commissioner refuses or revokes a license, he shall give 10 days' notice by registered mail to the applicant or licensee of the time and place of hearing. The applicant or licensee may appear at the hearing in person, or with counsel and produce witnesses. If the Commissioner finds the applicant or licensee in violation of any act provided in § 3.2-4760, he may refuse, suspend, or revoke the license and shall give immediate notice of his action to the applicant or licensee.

1972, c. 296, § 3.1-722.25; 2008, c. 860.

§ 3.2-4762. Commissioner's authority to investigate.

The Commissioner may conduct investigations relative to the complaint or matter being investigated, and he shall have free and unimpeded access during normal business hours to all buildings, yards, warehouses, storage and transportation facilities in which grain is kept, stored, handled, or transported, or where records of grain transactions are kept.

1972, c. 296, § 3.1-722.26; 2008, c. 860.

§ 3.2-4763. Violation a misdemeanor; illegal acts relating to issuance of receipts or removal of grain under storage, exchange or grain bank a felony.

A. Any person who violates any of the provisions of this article or the regulations adopted by the Board is guilty of a Class 1 misdemeanor.

B. Any grain dealer or employee or manager for a grain dealer who: (i) issues any storage, grain exchange or grain banking receipts for any grains that are not in a storage facility at the time of issuing such receipt; (ii) issues any grain receipt, including a scale ticket, that is in any respect fraudulent in its character, either as to its date or to the quantity, quality or inspected grade of such grain; or (iii) removes any grain from a storage facility, except to preserve the grain from fire or other damage or to move from storage to another facility operated by the grain dealer and licensed by the grain dealer, without the permission of the producer or his agent is guilty of a Class 6 felony.

1972, c. 296, § 3.1-722.28; 1982, c. 187; 2008, c. 860.

Article 5. Cotton Handlers.

§ 3.2-4764. Definitions.

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

"Cotton gin" means a facility where cotton seed and cotton lint are produced from raw cotton.

"Cotton handler" means any person doing business as a cotton gin, cotton merchant, or cotton warehouse.

"Cotton merchant" means any person who buys cotton from a producer for the purpose of resale, or acts as a broker or agent for a producer in arranging the sale of cotton. The term does not include a person that buys cotton for his own use.

"Cotton warehouse" means any enclosure in which producer-owned cotton is stored or held for longer than 48 hours.

2000, c. 584, § 3.1-722.29; 2008, c. 860.

§ 3.2-4765. License required; application; license fee and bond.

A. No person shall do business as a cotton handler without first obtaining a license from the Commissioner.

B. Every person intending to do business as a cotton handler, shall make application to the Commissioner for a license on or before July 1 of each year on a form provided by the Commissioner. Any license granted by the Commissioner shall expire on June 30 following the date of issuance. The application shall specify:

1. An address where the applicant will receive correspondence by first-class mail;

2. Every address where the records of the cotton handler will be kept;

3. Every address, including street address, building number, and city or town:

a. In the case of a cotton gin, where the cotton will be ginned; or

b. In the case of a cotton warehouse, where the cotton will be warehoused;

4. The full name and first-class mail address, including the street, city or town, and state, of a person who is authorized to receive service of process on behalf of the cotton handler; and

5. The form of business organization that the cotton handler will assume. If the applicant will be doing business as a sole proprietorship, he shall disclose the full name of the sole proprietor and the name under which the sole proprietor will be doing business. If the applicant will be doing business as a partnership, he shall disclose the full name of each of the partners, the name of the partnership, and the name under which the partnership will be doing business. If the applicant will be doing business as a corporation, he shall disclose the full name of each of the officers of the corporation, the name of the corporation, and the name under which the corporation will be doing business. If the applicant will be doing business as a limited liability company or foreign limited liability company, he shall disclose the full name of the manager of the company, the name of the company, and the name under which the company will be doing business as a cotton handler. If the company has no manager, the applicant shall disclose the full names of the members of the company.

C. The applicant shall submit with the application a nonrefundable application fee of $50.

D. Every person submitting an application for a license as a cotton handler who will be doing business as a cotton gin or cotton merchant shall furnish at the time of application for a license a bond in the amount of $50,000 in accordance with § 3.2-4767. Nothing in this subsection shall require a person doing business as a cotton gin to be separately licensed or bonded as a cotton merchant.

E. Except as otherwise provided in subsection F, every person making application for a license as a cotton handler doing business as a cotton warehouse shall furnish, at the time of application for the license, proof of insurance with a company licensed to do business in the Commonwealth in an amount equal to the fair market value of the maximum amount of cotton that can be stored in the warehouse, and a bond in the amount of $500,000 in accordance with § 3.2-4767.

F. In lieu of satisfying the requirements of subsection E, a cotton handler doing business solely as a cotton warehouse may furnish proof of a valid license issued pursuant to the United States Warehouse Act (USWA) (7 U.S.C. § 241 et seq.). A cotton handler governed by this subsection shall notify the Commissioner of any change in the status of its USWA license within 24 hours after being notified by the U.S. Department of Agriculture.

2000, c. 584, §§ 3.1-722.30 to 3.1-722.32; 2008, c. 860.

§ 3.2-4766. Additional information to be reported by cotton gin each license year.

Prior to beginning ginning for the current license year, the cotton gin will provide to the Commissioner the last bale tag number used in the previous year and first bale tag number to be used in the current year.

2000, c. 584, § 3.1-722.33; 2008, c. 860.

§ 3.2-4767. Execution and terms of bond; action.

Bonds required by § 3.2-4765 shall be executed by the applicant as principal and by a surety company authorized and qualified to do business in the Commonwealth as surety. The applicant shall file on or before July 1 of each licensing year a copy of the bond with the Commissioner, and the Commissioner shall be designated as the trustee of this bond. The bond shall be conditioned upon compliance with the provisions of this article and upon prompt and accurate settlement with the consignor. Any consignor of cotton claiming that a cotton handler has failed to comply with the provisions of this article or any regulations adopted hereunder, or has failed to settle promptly and accurately with the consignor, may bring action upon the cotton handler's bond against either the principal, or the surety, or both, in an appropriate court.

2000, c. 584, § 3.1-722.35; 2008, c. 860.

§ 3.2-4768. Duties and powers of Commissioner with respect to bonds.

The Commissioner may accept the proceeds from any bond on which he is trustee and deposit the proceeds in the state treasury with interest in favor of the bond claimants. The Commissioner may institute and prosecute suits for actions in the name of the Commonwealth on behalf of the claimants known and approved by him in any appropriate court for any purpose in connection with the collection or distribution of the bond or its proceeds. It shall be the duty of any person having a claim against a cotton handler to notify the Commissioner of his claim. The Commissioner shall have no duty to prosecute any claim unless he has received notice and believes the claim is valid. If the Commissioner believes the claim is invalid, he shall notify the claimant. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

2000, c. 584, § 3.1-722.36; 2008, c. 860.

§ 3.2-4769. Investigation by Commissioner; right of entry and inspection.

A. The Commissioner, upon receiving a complaint or upon his own motion, may investigate any violation of the provisions of this article. Such investigation may include:

1. The inspection of the books and records of any cotton handler;

2. The inspection of any cotton, including the weighing and reweighing of a representative sample of cotton bales stored at the cotton handler's premises; and

3. The inspection of any place where cotton or any related record is or has been kept, stored, transported, or otherwise handled. In conducting the inspection, the Commissioner may enter any premises, including any building, yard, warehouse, storage facility, or transportation facility, in which cotton or any related record is or has been kept, stored, transported, or otherwise handled. In exercising such right of entry, the Commissioner shall enter the premises during its hours of operation.

B. Any cotton handler who is the subject of an investigation by the Commissioner shall, upon request, assist the Commissioner in making any inspection.

2000, c. 584, § 3.1-722.37; 2008, c. 860.

§ 3.2-4770. Records to be kept by cotton handler.

A. Every cotton gin shall keep an accurate daily record of the cotton received from each consignor and ginned. The record shall contain:

1. The name and address of the consignor of the cotton;

2. The date that the cotton gin received the cotton;

3. The condition, quality, and quantity of the cotton on arrival at the cotton gin;

4. The gross weight of the vehicle containing the cotton, the tare weight for the vehicle used to transport the cotton, and the net weight of the cotton delivered to the cotton gin for final processing into bales of finished cotton;

5. A lot number or other identifying mark given to each consignment of cotton by the cotton gin that shall appear on all tags, tickets, or statements and on any other essential records needed to show what cotton was ginned by the cotton gin on behalf of the consignor;

6. The sequentially numbered tag or mark assigned to the cotton bale;

7. A report of the finished cotton including the weight, grade, quality and condition;

8. A report of credit given for seed obtained during ginning process. If the actual weight of the seed is not determined, the record shall indicate the factor used to calculate weight and the final calculation; and

9. An itemized statement of the charges to be paid to the cotton gin by the consignor in connection with ginning the cotton.

B. If, at any time, the cotton gin alters any record required by subsection A, the cotton gin shall create an addendum to the record indicating the nature of the alteration and the date the alteration was made and sign the addendum to the record with the full name of the person making the addendum.

C. Every cotton warehouse, receiving any cotton for storage, shall promptly maintain an accurate record, showing in detail the following information with reference to the handling and storage of the cotton:

1. A daily inventory record consisting of all cotton stored in the warehouse recorded by bale tag number;

2. The receiving record with transactions recorded by bale tag number; and

3. The transfer record with transactions recorded by bale tag number.

D. Every cotton merchant, having received any cotton for transfer, shall promptly maintain an accurate record, showing in detail the following information with reference to the handling and sales of the cotton:

1. The sales record with transactions recorded by bale tag number; and

2. The payable record with transactions recorded by bale tag number.

E. Every cotton handler shall retain all records, including tags or tickers, covering each transaction with each consignor, for a period of three years after the date that the record is required to be made.

2000, c. 584, § 3.1-722.38; 2008, c. 860.

§ 3.2-4771. Record and accounts to be provided to consignor.

A. Every cotton gin shall:

1. Within 48 hours after ginning the cotton, make available to the consignor the record required under § 3.2-4770; and

2. Unless the consignor agrees otherwise in writing, within 10 days after ginning cotton, deliver to the consignor a copy of such record and an account of all cotton ginned for the consignor.

B. Unless the consignor agrees otherwise in writing, every cotton handler shall, within 10 days after transferring or selling cotton on behalf of the consignor, deliver to the consignor a copy of the record required under § 3.2-4770 and an account of the consignor's cotton transferred or sold.

2000, c. 584, § 3.1-722.39; 2008, c. 860.

§ 3.2-4772. Certificate establishing condition, quality, grade to be furnished.

Every cotton gin shall, at the time of ginning, obtain a sample of each bale of ginned cotton for the purpose of determining condition, quality, and grade. Unless such sample is graded by the U.S. Department of Agriculture, the burden of proof shall be on the cotton gin to prove the accuracy of its accounting as to any transaction that may be questioned by the consignor or the Commissioner, relating to condition, quality or grade of ginned cotton.

2000, c. 584, § 3.1-722.40; 2008, c. 860.

§ 3.2-4773. Identification of finished bales of cotton.

Every cotton gin shall: (i) determine the weight of each bale of finished cotton immediately following the making of the bale; (ii) number sequentially all finished cotton bales; and (iii) affix to each bale a sequentially numbered tag for the purpose of identifying the individual bale of finished cotton. The tag shall also identify the origin module. The burden of proof shall be upon the cotton gin to prove the accuracy of its accounting.

2000, c. 584, § 3.1-722.41; 2008, c. 860.

§ 3.2-4774. Denial, suspension, or revocation of a license.

The Commissioner may deny, suspend, or revoke the license of any cotton handler if the cotton handler violates any provision of § 3.2-4772 or 3.2-4775. The Commissioner shall provide reasonable notice of an informal fact-finding conference pursuant to § 2.2-4019 to any cotton handler in connection with the denial, suspension, or revocation of the cotton handler's license.

2000, c. 584, § 3.1-722.42; 2008, c. 860.

§ 3.2-4775. Offenses and punishment.

Any cotton handler is guilty of a Class 1 misdemeanor if he:

1. Markets, obligates for sale, or otherwise disposes of producer-owned cotton without the written consent of the producer;

2. Conduct business without the license required by this article;

3. Imposes false charges for the handling of cotton;

4. Fails to account promptly, accurately, fully, and properly and to make settlement;

5. Intentionally makes any false statement with regard to grade, condition, markings, quality, or quantity of cotton received, ginned, packed, shipped, or otherwise handled, to the consignor of cotton with respect to the consignor's cotton, or to the Commissioner;

6. Fails to maintain records as required by this article;

7. In any instance in which the cotton handler offers to buy the consignor's cotton, fails to disclose to the consignor that the person making the offer is composed substantially of the same persons, as stockholders, members, or otherwise, who compose the cotton handler business;

8. Refuses the Commissioner the right of entry authorized by this article;

9. Knowingly provides false information on an application for license;

10. Fails to give reasonable written notice of any change in the style, name, or personnel of the cotton handler to the Commissioner or to the surety on the bond required by this article; or

11. Violates any provision of this article or regulation adopted hereunder.

2000, c. 584, § 3.1-722.43; 2008, c. 860.

Chapter 48. Commercial Feed.

§ 3.2-4800. Definitions.

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

"Animal" means any animate being, which is not human, endowed with the power of voluntary action.

"Brand name" means any word, name, symbol, or device, or any combination thereof, identifying the commercial feed of a distributor or registrant and distinguishing it from the commercial feed of other distributors or registrants.

"Commercial feed" means any materials or combination of materials that are distributed or intended for distribution for use as feed for animals, or for mixing in feed. Commercial feed shall not include the following commodities, provided they are not adulterated as provided in § 3.2-4808: unmixed whole seeds, raw meat, raw goats' milk, at the farm only; hay, straw, stover, silage, cobs, husks, hulls, and individual chemical compounds or substances, when not mixed or intermixed with other materials.

"Contract feeder" means a person who is an independent contractor and who: (i) feeds commercial feed to animals pursuant to a contract; (ii) is provided such commercial feed by a licensed distributor; and (iii) receives remuneration as determined all or in part by the amount of feed consumption, mortality, profits, or amount or quality of production.

"Custom mix feed" means a feed for which the customer provides ingredients.

"Customer-formula feed" means commercial feed that consists of a mixture of commercial feeds, or feed ingredients, or a combination of both commercial feeds and feed ingredients, each batch being manufactured according to the specific instructions of the final purchaser.

"Distribute" means to: (i) offer or expose for sale, sell, warehouse, exchange, or barter commercial feed; or (ii) supply, furnish, or otherwise provide commercial feed to a contract feeder.

"Distributor" means any person who distributes commercial feed.

"Drug" means any article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in animals and articles other than commercial feed intended to affect the structure or any function of the animal body.

"Feed ingredient" means each of the constituent materials making up a commercial feed.

"Guarantor" means any person whose name appears on the label of a commercial feed.

"Label" means a display of written, printed, or graphic matter upon, or affixed to, the container in which a commercial feed is distributed, or on the invoice or delivery slip with which a bulk commercial feed, or customer-formula feed, is distributed.

"Labeling" means all labels and other written, printed, or graphic matter: (i) upon a commercial feed or any of its containers or wrapper; or (ii) accompanying such commercial feed.

"Licensee" means the person who receives a license to distribute commercial feed under the provisions of this chapter.

"Manufacture" means to grind, mix or blend feed ingredients, or further process a commercial feed for distribution.

"Manufacturer" means any person who manufactures commercial feed.

"Medicated feed" means a commercial feed obtained by mixing a commercial feed and a drug.

"Mineral feed" means a commercial feed intended to supply primarily mineral elements or inorganic nutrients.

"Official analysis" means the analysis of an official sample made by the Commissioner.

"Official sample" means a sample of feed taken by the Commissioner and designated as "official" by the Board.

"Percent" or "percentages" means percentage by weight.

"Pet food" means any commercial feed prepared and distributed for consumption by cats and dogs.

"Product name" means the name of the commercial feed that identifies it as to kind, class, or specific use.

"Quantity statement" means the net weight (mass), net volume (liquid or dry), count or other form of measurement of a commodity.

"Small package commercial feed" means commercial feed distributed in individual packages of 10 pounds or less.

"Specialty pet" means any domesticated animal usually maintained in a cage or tank, including gerbils, hamsters, canaries, psittacine birds, mynahs, finches, tropical fish, goldfish, snakes and turtles. Specialty pet does not include dogs, cats, horses, rabbits, and wild birds.

"Specialty pet food" means any commercial feed prepared and distributed for consumption by specialty pets.

"Stop sale, use, removal or seizure order" means an order that prohibits the distributor from selling, relocating, using, or disposing of a lot of commercial feed or portion thereof, in any manner, until the Commissioner or an appropriate court, gives written permission to sell, relocate, use, or dispose of the lot of commercial feed or portion thereof.

"Ton" means a unit of 2,000 pounds avoirdupois weight.

1994, c. 743, § 3.1-828.2; 2008, c. 860.

§ 3.2-4801. Authority of the Board and the Commissioner to adopt regulations.

A. The Board may adopt regulations for commercial feeds as are necessary to carry out the provisions of this chapter.

B. The Commissioner may adopt as a regulation:

1. The official Definitions of Feed Ingredients, Official Feed Terms, and analytical variations adopted by the Association of American Feed Control Officials and published in the Official Publication of that organization;

2. Any federal regulation that pertains to this chapter, amending it as necessary for intrastate applicability;

3. The methods of sampling and analysis for commercial feed and the components of commercial feed adopted by the Association of Official Analytical Chemists in the publication of that organization; and

4. Any method of sampling and analysis for commercial feed and the components of commercial feed developed by the Department or adopted by agencies of the federal government, agencies of other states, the Division of Consolidated Laboratory Services or other commercial laboratories accredited by the Food and Drug Administration, U.S. Department of Agriculture or Association of Official Analytical Chemists.

C. Such regulations adopted by the Commissioner shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations. The regulation shall contain a preamble stating that the Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision of such regulation.

D. The Board, after giving notice in the Virginia Register of Regulations, may reconsider and revise the regulation adopted by the Commissioner. Such revised regulation shall be effective upon filing with the Registrar of Regulations, who shall publish the regulation as a final regulation in the Virginia Register of Regulations.

E. Neither the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption, reconsideration, or revision of any regulation adopted pursuant to subsections B, C, and D.

1994, c. 743, § 3.1-828.4; 2008, c. 860.

§ 3.2-4802. Publications.

The Commissioner may publish, in such forms as he may deem proper, information concerning the sales of commercial feeds, together with such data on their production and use as he may consider appropriate.

1994, c. 743, § 3.1-828.16; 2008, c. 860.

§ 3.2-4803. Licensing of manufacturers and guarantors of commercial feed.

A. Any person who manufactures a commercial feed or any guarantor shall, before: (i) distributing, selling, offering or exposing for sale in the Commonwealth any commercial feed; or (ii) supplying commercial feed to a contract feeder, obtain a license from the Commissioner. The person who manufactures or is the guarantor of such commercial feed shall submit a license application to the Commissioner on a form furnished or approved by the Commissioner, and pay to the Commissioner a license fee of $50. Any person with multiple manufacturing facilities shall obtain a license and pay a license fee to the Commissioner for each manufacturing facility that distributes commercial feed in Virginia. The license year shall be January 1 through December 31. Each license shall expire on December 31 of the year for which it is issued. Any license shall be valid through January 31 of the next ensuing year or until the issuance of the renewal license, whichever event occurs first, if the holder of the license has filed a renewal application with the Commissioner on or before December 31 of the year for which the current license was issued. Any new applicant who fails to obtain a license within 15 working days of notification of the requirement to obtain a license, or any licensee who fails to comply with license renewal requirements, shall pay a $50 late fee to the Commissioner in addition to the license fee. The Commissioner may issue a stop sale, use, removal, or seizure order on any commercial feed that the nonlicensee produces or distributes in the Commonwealth until such license is issued.

B. The Commissioner shall not issue a license to any person not in compliance with any provision of this chapter, and shall revoke the license of any person subsequently found not to be in compliance with any provision of this chapter.

1994, c. 743, § 3.1-828.6; 2008, c. 860.

§ 3.2-4804. Product registration required of commercial feed distributors.

A. Any person who distributes: (i) medicated feed; (ii) small package commercial feed; or (iii) specialty pet food shall register those commercial feeds with the Commissioner and pay to the Commissioner the registration fees specified in this section. It is unlawful for any person to distribute medicated feed, small package commercial feed, or specialty pet food in the Commonwealth without first obtaining a registration certificate from the Commissioner.

B. The registration year for medicated feed, small package commercial feed, and specialty pet food shall be January 1 through December 31. Each registration shall expire on December 31 of the year for which it is issued. Any registration shall be valid through January 31 of the next ensuing year or until the issuance of the renewal registration, whichever event occurs first, if the holder of the registration has filed a renewal application with the Commissioner on or before December 31 of the year for which the current registration was issued. Any person who fails to comply with registration renewal requirements shall pay a $50 late fee to the Commissioner in addition to the registration fee. The Commissioner may issue a stop sale, use, removal, or seizure order on any nonregistered commercial feed until such registration is issued.

C. Every manufacturer or guarantor of a medicated feed, except for customer-formula medicated feed, distributed in the Commonwealth shall: (i) apply for registration for each medicated feed on forms furnished or approved by the Commissioner; (ii) pay a registration fee of $50 per medicated feed to the Commissioner by January 1; and (iii) submit a copy of the proposed label for such medicated feed for approval with the registration form. The manufacturer or guarantor is not required to register additional package sizes of the same medicated feed.

D. Every manufacturer or guarantor of small package commercial feed shall: (i) apply for registration for each small package commercial feed on forms furnished or approved by the Commissioner; (ii) pay a registration fee of $50 to the Commissioner by January 1 per small package commercial feed, in lieu of an inspection fee for this size package; and (iii) submit a copy of any label, used or proposed to be used with the small package commercial feed for approval with the registration form.

E. Every manufacturer or guarantor of a specialty pet food distributed in the Commonwealth in individual packages of one pound or less shall: (i) apply for registration for each specialty pet food in individual packages of one pound or less only on forms furnished or approved by the Commissioner; (ii) pay a registration fee of $35 to the Commissioner by January 1 per specialty pet food to a maximum of $700 for this size package, in lieu of the inspection fee; and (iii) submit a copy of any label, used or proposed to be used with the specialty pet food, for approval with the registration form.

F. If the Commissioner, after examination and investigation, finds that the application and labeling of commercial feed comply with this chapter, the Commissioner shall issue a certificate of registration to the applicant upon payment of the specified registration fee. The granting of registration does not constitute the Commissioner's recommendation or endorsement of the product.

G. If the Commissioner identifies any unregistered commercial feed in commerce in the Commonwealth during the registration year, the Commissioner shall give the guarantor or manufacturer a grace period of 15 working days from issuance of notification of nonregistration to the guarantor or manufacturer within which to register the product. Any guarantor or manufacturer who fails to register the product within the grace period shall pay a $50 late fee to the Commissioner in addition to the registration fee. The Commissioner may issue a stop sale, use, removal, or seizure order upon any commercial feed until the registration is issued.

1994, c. 743, §3.1-828.7; 2008, c. 860.

§ 3.2-4805. Report and inspection fees.

A. The reporting year for commercial feed tonnage shall be January 1 through December 31. The manufacturer or guarantor shall, by February 1 of the next ensuing year: (i) file the tonnage statement with the Commissioner; and (ii) pay to the Commissioner the inspection fee that shall not be less than $35 per year.

B. The filing of a tonnage report and the inspection fee shall be as follows:

1. Except when distributing to a contract feeder, any person who manufactures or distributes commercial feed or a component of commercial feed under his label in the Commonwealth, including a person who mixes, mills, or processes customer-formula feed, shall file with the Commissioner a tonnage statement and pay to the Commissioner an inspection fee of seven cents ($0.07) per ton of commercial feed per reporting year.

2. Any person who distributes commercial feed to contract feeders in the Commonwealth shall file with the Commissioner a tonnage statement and pay to the Commissioner an inspection fee of seven cents ($0.07) per ton of commercial feed distributed to contract feeders per reporting year.

3. Any person who distributes commercial feed to a nonlicensed person:

a. Shall file the tonnage statement with the Commissioner and pay to the Commissioner the inspection fee as specified in this subsection; or

b. Shall not be required to file the tonnage statement or pay the inspection fee if: (i) another person agrees in a written statement, filed with the Commissioner, to file the tonnage statement and pay the inspection fee by February 1; and (ii) he files with the Commissioner by February 1 a purchasing report on a form furnished or approved by the Commissioner stating the number of tons of commercial feed purchased during the reporting year and from whom the commercial feed was purchased.

C. The Commissioner shall not require a person to pay an inspection fee on a portion of a custom-mix feed that is produced by the purchaser or acquired by the purchaser from a source other than the person who is paying the inspection fee.

D. The manufacturer or guarantor shall report commercial feed tonnage and pay the inspection fee on all packages of the same product name or brand name of any commercial feed registered under this section, sold in packages of greater than 10 pounds, as required by this section.

E. Any person who is liable for an inspection fee that is due, and has not been paid to the Commissioner, within 15 working days following February 1, shall pay to the Commissioner a late fee of 10 percent of the inspection fee due, or $50, whichever is greater, in addition to the amount of inspection fee owed. The assessment of this late fee shall not prevent the Commissioner from taking other action, as provided for in this chapter.

F. Any person required to pay an inspection fee, or to report commercial feed tonnage, under this chapter shall keep such records as may be necessary or required by the Commissioner to indicate accurately: (i) the tonnage of commercial feed; (ii) the product names of any medicated feeds; (iii) the product names of any small package commercial feeds; and (iv) the product names of any specialty pet products distributed by the person in the Commonwealth. The person who reports commercial feed tonnage shall retain such records for a period of three years. The Commissioner may examine such records to verify reported statements of tonnage.

1994, c. 743, § 3.1-828.7; 2008, c. 860.

§ 3.2-4806. Labeling.

A. The manufacturer or guarantor of a commercial feed, except customer-formula or custom mix feed, shall affix a label to the commercial feed that states in the English language the following information:

1. The quantity statement;

2. The product name and, if any, the brand name of the commercial feed;

3. The guaranteed analysis, the terms of which the Board shall determine by regulation so as to advise the user of the composition of the feed, or to support claims made in the labeling. In all cases, the substances or elements shall be determinable by laboratory methods of sampling and analysis, as specified in § 3.2-4801;

4. The common or usual name of each ingredient used in the manufacture of the commercial feed. The Board may, by regulation: (i) permit the use of a collective term for a group of ingredients that perform a similar function; or (ii) exempt such commercial feeds, or any group of ingredients, from this requirement if the Board finds that such statement is not required in the interest of consumers;

5. The name and principal mailing address of the manufacturer, or the person responsible for distributing the commercial feed, if such person is not the manufacturer;

6. Directions for use in the case of all commercial feeds containing drugs, and for such other feeds as the Board may, by regulation, require as necessary for the safe and effective use of the commercial feed; and

7. Any precautionary statements as the Board, by regulation, determines are necessary for the safe and effective use of the commercial feed.

B. The manufacturer or guarantor of a customer-formula or custom mix feed shall affix to or include with the feed a label, invoice, delivery slip, or other shipping document that states in the English language the following information:

1. The name and address of the manufacturer;

2. The name and address of the purchaser;

3. The date of manufacture;

4. Either: (i) the product name and net weight of each commercial feed and each other ingredient used in the mixture; (ii) the guaranteed analysis, as provided in subdivision A 3 with the ingredients as provided in subdivision A 4; (iii) identification by means of an identifying name, number or similar designation, where the manufacturer or guarantor furnishes all ingredients for a customer-formula feed, provided that the manufacturer or guarantor makes available a copy of the list of ingredients to the Commissioner at the location where the Commissioner takes an official sample; or (iv) the manufacturer or guarantor notes a modification on the label of a commercial feed where the manufacturer or guarantor modifies a commercial feed in normal trade at the request of the consumer, and such request does not affect the guaranteed analysis of said feed;

5. Directions for use for all customer formula or custom mix feeds containing drugs and for such other feeds as the Board may require, by regulation, as necessary for the safe and effective use of the commercial feed;

6. The directions for use and precautionary statements as required by subdivisions A 6 and A 7; and

7. If drugs are used in formulating the commercial feed: (i) the purpose of the medication (claim statement); and (ii) the established name of each active drug ingredient, and the level of each drug used in the final mixture, expressed in accordance with applicable regulations.

1994, c. 743, § 3.1-828.5; 2008, c. 860.

§ 3.2-4807. Misbranding.

A. It is unlawful for any person who is a manufacturer or guarantor of commercial feed to distribute a commercial feed if:

1. The labeling of the commercial feed is false or misleading in any particular;

2. The commercial feed is distributed under the name of another commercial feed;

3. The commercial feed is labeled in any manner other than as required in § 3.2-4806;

4. The commercial feed purports to be, or is represented as, a commercial feed, or if it purports to contain, or is represented as containing, a commercial feed ingredient, unless such commercial feed or feed ingredient conforms to the definition, if any, prescribed by regulation by the Board; or

5. Any word, statement, or other information required by, or under authority of, this chapter to appear on the label or labeling of the commercial feed is not prominently placed thereon with such conspicuousness, (as compared with other words, statements, designs, or devices in the labeling) and in such terms, so that the purchaser or user is likely to read and understand the label under customary condition of purchase and use.

B. The violation of any provision of this section shall be deemed to be misbranding.

1994, c. 743, § 3.1-828.9; 2008, c. 860.

§ 3.2-4808. Adulteration.

A. It is unlawful for any person who is a manufacturer or guarantor of a commercial feed to distribute a commercial feed if the commercial feed:

1. Contains any poisonous or deleterious substance that may render the commercial feed or its packaging injurious to health, unless the poisonous or deleterious substance is not an added substance and is not of sufficient quantity to render the commercial feed injurious to health under ordinary circumstances;

2. Contains any added poisonous, added deleterious, or added nonnutritive substance that is unsafe within the meaning of Section 406 of the Federal Food, Drug, and Cosmetic Act. If the substance is a food additive or a pesticide chemical in or on a raw agricultural commodity, then subdivisions A 3 and A 4 shall govern;

3. Is, bears, or contains any food additive that is unsafe within the meaning of Section 409 of the Federal Food, Drug, and Cosmetic Act;

4. Is a raw agricultural commodity and it bears or contains a pesticide chemical that is unsafe within the meaning of Section 408 (a) of the Federal Food, Drug, and Cosmetic Act. If a pesticide chemical has been used in or on a raw agricultural commodity in conformity within an exemption granted, or a tolerance prescribed, under Section 408 of the Federal Food, Drug, and Cosmetic Act and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating, or milling, then the residue of such pesticide chemical remaining in or on such processed feed shall not be deemed unsafe, so long as: (i) such residue in or on the raw agricultural commodity has been removed to the extent possible within good manufacturing practice; (ii) the concentration of such residue in the processed feed is not greater than the tolerance prescribed by Section 408 of the Federal Food, Drug, and Cosmetic Act for the raw agricultural commodity; and (iii) the feeding of such processed feed will not result, or be likely to result, in a pesticide residue in the edible produce of the animal, and that pesticide residue is unsafe within the meaning of Section 408 (a) of the Federal Food, Drug, and Cosmetic Act;

5. Is, bears or contains any color additive that is unsafe within the meaning of Section 721 of the Federal Food, Drug, and Cosmetic Act;

6. Is, bears, or contains any new animal drug that is unsafe within the meaning of Section 512 of the Federal Food, Drug, and Cosmetic Act;

7. Has had any valuable constituent, in whole or in part, omitted or abstracted from the commercial feed, or any less valuable substance substituted into the commercial feed;

8. Has had the composition or quality of the commercial feed fall below or differ from that which the manufacturer or guarantor purports or represents the commercial feed to possess by its labeling;

9. Contains a drug, and the methods used in, or the facilities or controls used for, its manufacture, processing, or packaging do not conform to current good manufacturing practice; or if the drug does not conform to regulations adopted by the Board, to assure that the drug meets the requirements of this chapter as to safety, and to assure that the drug has the identity, strength, quality, and purity characteristics that it purports or is represented to possess. In adopting such regulations, the Board shall adopt the current good manufacturing practice regulations for Type A Medicated Articles, and Type B, and Type C Medicated Feeds, established under authority of the Federal Food, Drug, and Cosmetic Act, unless the Board determines that such regulations are not appropriate to the conditions that exist in the Commonwealth; or

10. Contains viable weed seeds in amounts exceeding the limits as specified in the regulations of the Board. Nothing in this subdivision shall apply to whole unprocessed seeds.

B. The violation of any provision of this section shall be deemed to be adulteration.

1994, c. 743, § 3.1-828.10; 2008, c. 860.

§ 3.2-4809. Inspection, sampling, and analysis.

A. The Commissioner may enter and inspect any factory, warehouse, or establishment within the Commonwealth during operating hours in which commercial feed is manufactured, processed, packed, warehoused, sold, or held for distribution, or any vehicle used to transport or hold such feed, to determine whether the provisions of this chapter have been complied with, including whether or not any operations may be subject to such provisions. The inspection shall include the verification of only such records and production and control procedures, pertinent equipment, finished material, unfinished material, any container, and labeling therein as may be necessary to determine compliance with this chapter.

B. The Commissioner may obtain samples from any premises during operating hours or any vehicle enumerated in subsection A, and examine records relating to distribution of commercial feeds.

C. When the inspection and analysis of an official sample indicates a commercial feed has been adulterated, misbranded, or is otherwise deficient under the provisions of this chapter, the Commissioner shall, upon request, furnish to the licensee a portion of the sample concerned within 30 days following the receipt of such analysis by the licensee.

D. The Commissioner, in determining for administrative purposes whether a commercial feed is deficient in any component, shall be guided by the official sample. Such official sample shall be obtained and analyzed as provided in § 3.2-4801.

E. The Commissioner shall allocate adequate personnel to the major farm feed consuming areas of the state to carry out his duties under this act as such duties relate to insuring the quality, analysis, and quantity of feed sold and distributed in the Commonwealth.

1994, c. 743, § 3.1-828.8; 2008, c. 860.

§ 3.2-4810. Assessments for variance from guaranteed analysis, misbranding, and adulteration.

A. If the Commissioner determines that a commercial feed fails to meet the label guarantee within the analytical variations specified in § 3.2-4801, the Commissioner shall make an assessment against the guarantor on each pound of the lot of commercial feed represented by the sample and that any person sold as follows:

1. For deficient protein, two and one-half times the value of the deficiency;

2. For deficient fat, two times the value of the deficiency; and

3. For excessive fiber, 10 percent of the sales invoice price of the feed.

B. If the Commissioner determines that any commercial feed is misbranded as provided in § 3.2-4807 or adulterated as provided in § 3.2-4808, the Commissioner shall assess 10 percent of the sales invoice price of the feed against the guarantor on each pound of the lot of commercial feed represented by the sample and that any person sold.

C. If the Commissioner finds a commercial feed in violation of subsection A or § 3.2-4807 or 3.2-4808, the Commissioner shall:

1. Assess the manufacturer or guarantor based on the violations that occur in a 90-day period, such period to begin on the date when the Commissioner sends notification of the violation to the manufacturer or guarantor. The 90-day period restarts upon each notification of violation to the manufacturer;

2. Assess the manufacturer or guarantor on violative commercial feeds that bear the same label and are from the same manufacturing location;

3. Not make more than one assessment against the manufacturer or guarantor for the same manufacturing lot of commercial feed when the lot identification information is listed on the label of the commercial feed;

4. Not assess the manufacturer or guarantor in excess of $5,000 per occurrence;

5. Assess a minimum of $200 for the first violation;

6. Assess a minimum of $400 for the second violation;

7. Assess a minimum of $800 for the third violation;

8. Assess a minimum of $1,600 for the fourth violation;

9. Assess a minimum of $3,200 for the fifth violation;

10. Assess a minimum of $5,000 for the sixth violation, and for each ensuing violation, without limitation;

11. Waive the initial $200 minimum assessment if the Commissioner finds that the violation of the commercial feed variance provision has not occurred within the 90-day period; and

12. Have the discretion not to make an assessment if the value of the deficiency of the initial violation is $5 or less, but shall notify the manufacturer or guarantor and shall apply all further assessments on additional violations.

D. The manufacturer or guarantor shall pay all assessments to the Commissioner within 60 days of notice of payment due. Any person who fails to pay the assessment within the specified time shall pay to the Commissioner a late fee as specified in § 3.2-4811. The Commissioner shall revoke the license of such person who fails to pay the assessment.

E. The Commissioner shall compute the approximate value per pound of protein and fat and this computation shall be used to establish the relative value of deficiencies on commercial feed sold or offered for sale in the Commonwealth. The Commissioner may furnish, and upon application shall furnish, such relative values to any person engaged in the manufacture or sale of feed in the Commonwealth.

F. As used in this section, the term "value of the deficiency" means the monetary value of the deficiency in protein or fat of the lot of commercial feed from which the Commissioner collected a sample. The Commissioner shall determine the value of the deficiency by calculating the number of pounds of commercial feed deficient in protein or fat, as compared to the label guarantee, in the sample lot and multiplying those pounds by the relative value per pound of protein or fat.

1994, c. 743, § 3.1-828.11; 2008, c. 860.

§ 3.2-4811. Fee for late payment of assessments.

Any manufacturer or guarantor who does not pay an assessment for variance from label guarantee within 60 days shall pay to the Commissioner a late payment fee of 10 percent of the assessment or $50, whichever is greater, in addition to the assessment for variance from label guarantee.

1994, c. 743, § 3.1-828.13; 2008, c. 860.

§ 3.2-4812. Prohibited acts.

A. It is unlawful for a manufacturer or guarantor of commercial feed to:

1. Manufacture or distribute any commercial feed that is adulterated or misbranded;

2. Adulterate or misbrand any commercial feed;

3. Remove or dispose of a commercial feed in violation of an order issued pursuant to § 3.2-4813;

4. Fail to obtain a license in accordance with § 3.2-4803;

5. Fail to register medicated feed, small package commercial feed, or specialty pet food in accordance with § 3.2-4804;

6. Obstruct or hinder the Commissioner in the performance of his duties under this chapter or otherwise attempt to prevent the Commissioner from performing these duties; or

7. Use metal of any kind, including any hook, snap, staple, or other fastener or device, to secure a package or attach any card, label, or ticket to a package containing feed.

B. It shall be unlawful for any person to distribute agricultural commodities within the Commonwealth including whole seeds, hay, straw, stover, silage, cobs, husks, and hulls that, if such commodities were commercial feed, are adulterated within the meaning of § 3.2-4808.

1994, c. 743, § 3.1-828.12; 2008, c. 860.

§ 3.2-4813. Detained commercial feeds.

A. The Commissioner may issue and enforce a written or printed stop sale, use, removal, or seizure order to the owner or custodian of any lot of commercial feed distributed in violation of this chapter. The Commissioner shall release for distribution the commercial feed held under a stop sale, use, removal, or seizure order when the requirements of this chapter have been satisfied. If the Commissioner determines that the commercial feed cannot be brought into compliance with this chapter, the Commissioner shall release the commercial feed to be: (i) remanufactured, if possible; (ii) returned to the manufacturer; or (iii) destroyed.

B. The Commissioner may seize any lot of commercial feed not in compliance with this chapter. The Commissioner may make application for seizure to an appropriate court in the city or county where the commercial feed is located. In the event that the court finds the said commercial feed to be in violation of this chapter, and orders the condemnation of said commercial feed, the owner of the commercial feed shall dispose of the seized commercial feed in any manner that, in the opinion of the Commissioner, is consistent with the quality of the commercial feed, and that complies with the laws of the Commonwealth. In no instance shall the court order the disposition of said commercial feed without first giving the claimant an opportunity to apply to the court for release of said commercial feed, or for permission to process or relabel said commercial feed, to bring it into compliance with this chapter.

1994, c. 743, § 3.1-828.14; 2008, c. 860.

§ 3.2-4814. Disposition of fees, assessments, and penalties.

All licensing, registration and inspection fees, assessments and penalties under this chapter received by the Commissioner shall be paid into the Feed, Lime, Fertilizer, and Animal Remedies Fund, established in § 3.2-3617. The fund shall be used in carrying out the purpose and provisions of this chapter, to include inspection, sampling and other expenses; except that seven cents ($0.07) per ton of commercial feed per license year of inspection fees received by the Commissioner shall be transferred to the Virginia Agricultural Foundation Fund pursuant to § 3.2-2905.

1994, c. 743, § 3.1-828.17; 2008, c. 860.

§ 3.2-4815. Commissioner's actions; injunction.

A. Nothing in this chapter shall require the Commissioner to: (i) report for prosecution; (ii) institute seizure proceedings; or (iii) issue a withdrawal from distribution order if a violation of this chapter is minor, or if the Commissioner believes the public interest will best be served by a suitable notice of warning in writing.

B. The Commissioner may apply for, and an appropriate court many grant, a temporary or permanent injunction, restraining any person from violating, or continuing to violate, any of the provisions of this chapter, or regulation adopted under the chapter.

1994, c. 743, § 3.1-828.13; 2008, c. 860.

§ 3.2-4816. The Commissioner to cancel license and product registrations.

The Commissioner shall cancel the commercial feed license and product registrations of any person who fails to comply with the chapter by:

1. Failing to file the tonnage report;

2. Falsifying information;

3. Making an inaccurate statement of tonnage distributed in Virginia during any reporting license year;

4. Making an inaccurate listing of medicated feed, small packaged commercial feed, or specialty pet feed for registration;

5. Failing to pay the license, registration, or inspection fee;

6. Failing to accurately report any of the information required to be submitted under this chapter;

7. Failing to keep records for a period of three years; or

8. Failing to allow inspection of records by the Commissioner, as required by subsection F of § 3.2-4805.

1994, c. 743, § 3.1-828.7; 2008, c. 860.

§ 3.2-4817. Violation of chapter; penalty.

Any person convicted of violating any provision of this chapter is guilty of a Class 3 misdemeanor.

1994, c. 743, § 3.1-828.13; 2008, c. 860.

Chapter 49. Animal Remedies.

§ 3.2-4900. Definitions.

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

"Advertisement" means all representations, other than those on the label, disseminated in any manner or by any means, relating to animal remedies.

"Animal" means any animate being, which is not human, endowed with the power of voluntary action.

"Animal remedies" means all drugs, combinations of drugs, proprietary medicines, and combinations of drugs and other ingredients, other than for food purposes or cosmetic purposes that are prepared or compounded for animal use; except those exempted by the Commissioner.

"Dosage form" means any animal remedy prepared in tablets, pills, capsules, ampules, or other units suitable for administration as an animal remedy.

"Drug" means articles: (i) recognized in the latest addition or any supplement thereto of the Official United States Pharmacopoeia, the official Homeopathic Pharmacopoeia of the United States, or the Official National Formulary; (ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in animals; (iii) other than food or cosmetics, intended to affect the structure or any function of the body of animals; or (iv) intended for use as a component of any articles specified in clauses (i) or (ii) of this definition.

"Label" means a display of written, printed, or graphic matter upon the immediate container of any article.

"Labeling" means all labels and other written, printed, or graphic matter upon any article or any of its containers or wrappers or accompanying such article.

"Medicated feed" means a product obtained by mixing a commercial feed and a drug.

"Quantity statement" means the net weight (mass), net volume (liquid or dry), count or other form of measurement of a commodity.

"Sell" or "sale" includes exchange.

"Stop sale, use, removal, or seizure order" means an order that prohibits the distributor from selling, relocating, using, or disposing of an animal remedy in any manner, until the Commissioner or an appropriate gives written permission to sell, relocate, use or dispose of the animal remedy.

Code 1950, § 3-646.1; 1956, c. 517; 1966, c. 702, § 3.1-829; 1994, c. 910; 2008, c. 860.

§ 3.2-4901. Exemptions from chapter.

The provisions of this chapter shall not apply to:

1. The compounding or dispensing of veterinarians' prescriptions, nor the dispensing of drugs or preparations by registered pharmacists compounded at the request of the purchaser and not intended for resale, nor shall such provisions apply to any animal remedy sold exclusively to or used exclusively by licensed veterinarians.

2. Any animal remedy that contains as an ingredient any part of the Cannabis plant or any product made from any part of the Cannabis plant.

Code 1950, § 3-646.11; 1956, c. 517; 1966, c. 702, § 3.1-841; 2008, c. 860; 2019, c. 267.

§ 3.2-4902. Registration required.

A. The manufacturer or person responsible for distributing an animal remedy in the Commonwealth shall obtain a registration from the Commissioner for the animal remedy before placing such remedy on the market, except for medicated feeds registered under subsection C of § 3.2-4804 of the Virginia Commercial Feed Law.

B. Any person may make application for registration of any animal remedy by filing with the Commissioner, on forms furnished or approved by him, a statement with respect to such animal remedy that includes:

1. The name and principal address of the manufacturer or person responsible for placing such animal remedy on the market and the name and address of the person to whom correspondence should be directed; and

2. The name, brand, or trademark under which the animal remedy will be sold.

C. A label for any animal remedy shall accompany each application for registration, and, when requested by the Commissioner, a representative and true sample or specimen of each animal remedy to be registered shall accompany such application.

D. A statement of claims made or to be made that differ from the label submitted shall be filed with the Commissioner prior to use.

E. If the Commissioner after examination and investigation, finds that the application and labeling comply with the provisions of this chapter, a certificate of registration shall be issued to the applicant on payment of a registration fee as provided in § 3.2-4904.

F. This section does not apply to an animal remedy intended solely for investigational, experimental, or laboratory use by qualified persons, provided such remedy is plainly labeled "for investigational use only."

G. The Commissioner may determine whether a preparation intended for animal use and subject to registration shall be registered as a commercial feed and as an animal remedy.

H. The manufacturer or person responsible for placing on the market an animal remedy that is offered for sale, sold or otherwise distributed in the Commonwealth before it has been properly registered shall be subject to a late registration fee of $50 payable to the Commissioner in addition to the registration fee. The registrant shall pay the late registration fee before the registration is issued.

Code 1950, § 3-646.5; 1956, c. 517; 1966, c. 702, § 3.1-834; 1994, c. 910; 2008, c. 860.

§ 3.2-4903. Refusal or revocation of registration.

The Commissioner may refuse to issue any certificate of registration to any applicant, if available facts indicate that the product proposed for registration is of negligible or no value in correcting, alleviating, or mitigating animal injuries or diseases for which it is intended. The Commissioner may suspend or revoke any registration for violation of any provision of this chapter.

Code 1950, § 3-646.7; 1956, c. 517; 1966, c. 702, § 3.1-836; 2008, c. 860.

§ 3.2-4904. Registration fees; terms of registration; renewal of registration.

A. The Commissioner shall, before issuing a certificate of registration for any animal remedy, collect from the applicant for such certificate a registration fee of $25 for each separate animal remedy registered. When an animal remedy has been registered and the registration fee paid by the manufacturer or distributor, no other person shall be required to pay such fee.

B. The registrant shall pay a registration fee for the registration year of January 1 through December 31. Each registration shall expire on December 31 of the year for which it is issued. A registration is valid through January 31 of the next ensuing year or until the issuance of the renewal registration, whichever event occurs first, so long as the holder of the registration has filed a renewal application with the Commissioner on or before December 31 of the year for which the current registration was issued and has paid the registration fee to the Commissioner. The granting of registration does not constitute the Commissioner's recommendation or endorsement of the animal remedy.

C. If the Commissioner identifies any unregistered animal remedy in commerce in the Commonwealth during the registration year, the Commissioner shall give the person who is required to register the animal remedy, a grace period of 15 working days from issuance of notification to register the animal remedy. Any person required to register an animal remedy who fails to register the animal remedy within the grace period shall pay to the Commissioner a $50 late fee in addition to the registration fee. The Commissioner may issue a stop sale, use, removal, or seizure order upon any animal remedy until the registration is issued.

Code 1950, § 3-646.12; 1956, c. 517; 1966, c. 702, § 3.1-842; 1994, c. 910; 2008, c. 860.

§ 3.2-4905. Disposition of funds collected.

All fees and assessments received by the Commissioner under this chapter shall be paid into the Feed, Lime, Fertilizer and Animal Remedies Fund, established in § 3.2-3617, to be used in carrying out the provisions of this chapter.

Code 1950, § 3-646.13; 1956, c. 517; 1966, c. 702, § 3.1-843; 1994, c. 910; 2008, c. 860.

§ 3.2-4906. Adulterated remedy.

An animal remedy is adulterated if:

1. It was prepared or held under unsanitary conditions and as a result it: (i) may have become contaminated with filth; or (ii) may have been rendered injurious to animal health.

2. Its composition, purity, strength, or quality falls below or differs from what it is purported or is represented to possess by its labeling. The Commissioner shall allow a reasonable tolerance from such representation, in accordance with good manufacturing practices.

3. It consists in whole or in part of any filthy, putrid or decomposed substance.

4. It bears or contains any poisonous or deleterious substance that may render it injurious to health under such conditions of use as are customary or usual.

5. Its container is composed of any injurious or deleterious substance that may render it injurious to health.

Code 1950, § 3-646.2; 1956, c. 517; 1966, c. 702, § 3.1-831; 1994, c. 910; 2008, c. 860.

§ 3.2-4907. Misbranded remedy.

An animal remedy is misbranded:

1. Unless the label bears, in the English language:

a. The name and principal addresses of the manufacturer or person responsible for placing such animal remedy on the market.

b. The name, brand, or trademark under which the animal remedy is sold.

c. An accurate quantity statement of the net contents of the package, lot, or parcel, such contents stated by weight in the case of solids, by volume in the case of liquids, and by both count and weight or volume per dose in the case of dosage forms.

d. The common or usual name of each active ingredient; in the case of a drug or drugs intended to be mixed with or in a feed for animals, and in the case of mixtures of a drug or drugs with or in a feed for animals, the English name of each active ingredient shall be stated and also the percentage of each active ingredient, or, in the case of antibiotics, the number of grams of each such active ingredient present in one pound of the product.

e. Adequate directions for use.

f. Adequate warnings against use in those conditions, whether pathological or normal, where its use may be dangerous to the health of animals, or against unsafe dosage, methods or duration of methods, administration, or application, in such manner and form, as are necessary for the protection of animals.

2. If the labeling is false or misleading in any particular.

3. If its container is made, formed, or filled so as to be deceptive or misleading as to the amount of contents.

4. If it is dangerous to the health of animals when used in the dosage or with the frequency or duration prescribed, recommended, or suggested in the labeling of such remedy.

5. If any word, statement, or other information appearing on the label does not also appear on the outside container or wrapper, if present, of the retail package of such article, or is not easily legible through the outside container or wrapper.

6. If any word, statement, or other information required to appear on the label is not prominently placed on the label with such conspicuousness, as compared with other words, statements, designs, or devices in the labeling, and in such terms, that it is likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

Any animal remedy that is manufactured and distributed under license from and under the supervision of the U.S. Department of Agriculture, and in compliance with the regulations of such department complies with this section.

Code 1950, §§ 3-646.1, 3-646.3; 1956, c. 517; 1966, c. 702, §§ 3.1-829, 3.1-832; 1994, c. 910; 2008, c. 860.

§ 3.2-4908. Withholding noncomplying remedies from sale; tagging, condemnation, destruction, and correction of adulterated or misbranded remedies.

A. The Commissioner shall require those animal remedies that are found or believed not to comply with the provisions of this chapter to be withheld from sale until he determines that the remedies are in compliance with such provisions.

B. Whenever the Commissioner finds or has reasonable cause to believe an animal remedy is adulterated or misbranded he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained and warning all persons not to dispose of such article in any manner until permission is given by the Commissioner or an appropriate court. Any such article may be removed from display by the manufacturer or vendor, but shall remain on the premises.

C. If such a detained article is found, after examination and analysis, to be adulterated or misbranded, the Commissioner may petition the judge of any appropriate court in whose jurisdiction the article is detained for condemnation. If the Commissioner finds that such detained article is not adulterated or misbranded, he shall remove the tag or other marking.

D. If the court finds that a detained animal remedy is adulterated or misbranded, such article shall, after entry of the decree, be destroyed, under the supervision of the Commissioner, at the expense of the defendant. All court costs and fees, and storage and other proper expenses, shall be paid by the defendant or his agent.

E. If the adulteration or misbranding can be corrected by proper processing or labeling of the article, an appropriate court, after entry of the decree and after such costs, fees, and expenses have been paid and a sufficient bond, conditioned that such article shall be so processed or labeled, has been executed, may order such article to be delivered to the defendant for such processing or labeling under the supervision of the Commissioner. The expense of such supervision shall be paid by the defendant. The bond shall be returned to the defendant on the representation to the court by the Commissioner that the article no longer violates any of the provisions of this chapter and that expenses incident to such proceeding were paid.

Code 1950, § 3-646.4; 1956, c. 517; 1966, c. 702, § 3.1-833; 1994, c. 910; 2008, c. 860.

§ 3.2-4909. Investigations by Commissioner; right of access; securing and examining samples; obstructing Commissioner; penalty.

The Commissioner shall make all necessary investigations pertinent to the enforcement of this chapter.

The Commissioner shall have free access during operating hours to any establishment in which animal remedies are manufactured, processed, packed, sold or offered for sale, to inspect such premises and to determine whether the provisions of this chapter are being violated.

The Commissioner may secure samples or specimens of any animal remedy after paying or offering to pay for them, and he shall have an examination or analysis made of such sample to determine whether the provisions of this chapter are being violated. Any person who hinders or obstructs in any way the Commissioner in the performance of his official duties is guilty of a Class 3 misdemeanor.

Code 1950, § 3-646.6; 1956, c. 517; 1966, c. 702, § 3.1-835; 1972, c. 741; 1994, c. 910; 2008, c. 860.

§ 3.2-4910. Use of information acquired by Commissioner or employees of Department.

The Commissioner or any employee of the Department shall not use or reveal information acquired under §§ 3.2-4902 and 3.2-4909 except in the enforcement of this chapter, or to the courts, when relevant in any judicial proceeding.

Code 1950, § 3-646.8:1; 1956, c. 517; 1966, c. 702, § 3.1-838; 2008, c. 860.

§ 3.2-4911. Publication of information by Commissioner.

The Commissioner may publish at such times and in such forms as he may deem proper, information concerning the sales of animal remedies, together with data on their production and use, and a report of the results of the analyses of official samples of animal remedies sold within the Commonwealth as compared with the analyses guaranteed in the registration and on the label. The information concerning production and use of animal remedies shall not disclose the operations of any person.

Code 1950, § 3-646.10; 1956, c. 517; 1966, c. 702, § 3.1-840; 2008, c. 860.

§ 3.2-4912. Prohibitions.

A. It is unlawful for any person to:

1. Sell, deliver, hold, or offer for sale any animal remedy that has not been registered with the Commissioner as provided in § 3.2-4902, except that any biological product for use on or testing of any livestock, poultry, or any animal, manufactured under a license issued by the U.S. Department of Agriculture, shall not be considered as being subject to the registration requirements of such section.

2. Manufacture, sell, deliver, hold, or offer for sale any animal remedy that is adulterated or misbranded.

3. Compound, manufacture, make, produce, pack, package, or prepare within the Commonwealth any animal remedy to be offered for sale or distribution unless such compounding, manufacture, making, producing, packaging, packing, or preparing is done with adequate equipment under the supervision of a licensed veterinarian, a graduate chemist, a licensed pharmacist, a licensed physician, or some other person as may be approved by the Commissioner after an investigation and a determination by the Commissioner that they are qualified by scientific or technical training or by experience to perform such duties of supervision as may be necessary to protect animal health and public safety.

4. Disseminate any advertisement that is false or misleading. No person or medium for the dissemination of any advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, is subject to the penalties for violations of this chapter for disseminating such false advertisement, unless he refused, on the request of the Commissioner, to furnish the name and address of the manufacturer, packer, distributor, seller, or advertising agency that caused him to disseminate such advertisement.

5. Dispose of a detained article in violation of § 3.2-4908.

6. Give a guaranty that is false, except a person who relied on the guaranty signed by, and containing the name and address of, the person from whom he received the animal remedy in good faith.

7. Alter, mutilate, destroy, obliterate, or remove any part of the labeling of any animal remedy if such acts result in the animal remedy being misbranded, or do any other act, while the animal remedy is being held for sale that results in the misbranding of such article.

8. Forge, counterfeit, simulate, or falsely represent, or without proper authority use, any mark, stamp, tag, label, or other identification device required by § 3.2-4907.

9. Sell or offer to sell any biological product for use on any livestock, poultry, or other animal, unless such product is manufactured under a license issued by the U.S. Department of Agriculture or a registration issued by the Commissioner, or unless such product meets the requirements of the federal Food, Drug and Cosmetic Act.

10. Sell or offer to sell any biological product that has not been kept in refrigeration under conditions prescribed by the regulations of the Board.

B. The Commissioner shall assess any person who commits a prohibited act under this chapter 10 percent of the retail price of the animal remedy at the time of sampling on the product found in violation, or $50, whichever is greater, not to exceed $5,000 per occurrence. The person assessed shall pay the assessment to the Commissioner within 60 days from the date of notice to the person whose name appears on the label. Any person who fails to pay the assessment within the specified time shall pay a late fee of $50 to the Commissioner in addition to the assessment. The Commissioner shall revoke the registration of any person who fails to pay the assessment.

Code 1950, § 3-646.8; 1956, c. 517; 1966, c. 702, § 3.1-837; 1994, c. 910; 2008, c. 860.

§ 3.2-4913. Report of violations; duty of attorney for the Commonwealth.

The Commissioner shall report violations of this chapter to the attorney for the Commonwealth. It shall be the duty of every attorney for the Commonwealth, to whom the Commissioner shall report any violation of this chapter, to commence proceedings and prosecute without delay. This section shall not require the Commissioner to report, for the institution of prosecution under such sections, minor violations of this chapter if he believes the public interest will be adequately served in the circumstances by a suitable written notice of warning. In all prosecutions under this chapter involving the composition of an animal remedy, a certified copy of the official analysis signed by the analyst shall be accepted as prima facie evidence of the composition, provided the defendant has been furnished a copy thereof in advance of the trial.

Code 1950, § 3-646.14; 1956, c. 517; 1966, c. 702, § 3.1-844; 1972, c. 741; 1994, c. 910; 2008, c. 860.

§ 3.2-4914. Violation of chapter or regulations a misdemeanor.

Any person convicted of violating any provisions of this chapter and the regulations issued hereunder is guilty of a Class 1 misdemeanor, except as otherwise provided.

Code 1950, § 3-646.15; 1956, c. 517; 1966, c. 702, § 3.1-845; 1994, c. 910; 2008, c. 860.

Chapter 50. Farm Machinery and Equipment.

§ 3.2-5000. Sale of farm machinery or equipment where serial number has been removed, defaced or obliterated; penalty.

A. It is unlawful for any person to sell or offer for sale in the Commonwealth any new agricultural implement, farm tractor, or other type of farm machinery or equipment, knowing that the manufacturer's original serial number has been removed, defaced, or in any way obliterated. Any person who violates this subsection is guilty of a Class 2 misdemeanor. A person convicted of a second or subsequent offense under this subsection is guilty of a Class 1 misdemeanor.

B. The dealer in farm equipment who possesses for sale any farm implement or machinery that has had its serial number removed, defaced, or in any way obliterated, shall have his supplier stamp, attach or scribe, as was originally done, the same serial number as was placed upon the machine or implement at the time of its manufacture. Nothing contained in this section shall be construed to prevent any manufacturer or importer, or his agents, other than dealers, from doing his own numbering on agricultural implements, farm tractors, or other types of farm machinery or equipment, or parts, removed or changed, and replacing the numbered parts.

Code 1950, § 3-707; 1952, c. 672; 1966, c. 702, § 13.1-918; 2008, c. 860.

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