§ 3.2-100. Definitions.

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

“Board” means the Board of Agriculture and Consumer Services.

“Commissioner” means the Commissioner of Agriculture and Consumer Services.

“Department” means the Department of Agriculture and Consumer Services.

History. 2008, c. 860.

Transitional provisions.

Acts 2008, c. 860, cl. 2, provides: “That whenever any of the conditions, requirements, provisions, or contents of any section or chapter of Title 3.1 or any other title of the Code of Virginia as such titles existed prior to October 1, 2008, are transferred in the same or modified form to a new section or chapter of Title 3.2 or any other title of the Code and whenever any such former section or chapter is given a new number in Title 3.2 or any other title, all references to any such former section or chapter of Title 3.1 or other title appearing in this Code shall be construed to apply to the new or renumbered section or chapter containing such conditions, requirements, provisions, contents, or portions thereof.”

Acts 2008, c. 860, cl. 3, provides: “That the regulations of any department or agency affected by the revision of Title 3.1 or such other titles in effect on the effective date of this act shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations adopted under this act.”

Acts 2008, c. 860, cl. 4, provides: “That this title revision of Title 3.1 as Title 3.2 shall not be construed to require the reappointment of any officer or any member of a board, council, committee, or other appointed body referred to in Title 3.2 and each such officer and member shall continue to serve for the term for which appointed pursuant to the provisions of Title 3.1.”

Acts 2008, c. 860, cl. 5, provides: “That the provisions of § 30-152 of the Code of Virginia shall apply to the revision of Title 3.2 so as to give effect to other laws enacted by the 2008 Session of the General Assembly, notwithstanding the delay in the effective date of this act.”

Acts 2008, c. 860, cl. 6, provides: “That the repeal of Title 3.1, effective as of October 1, 2008, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that day. Except as otherwise provided in this act, neither the repeal of Title 3.1 nor the enactment of Title 3.2 shall apply to offenses committed prior to October 1, 2008, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purpose of this enactment, an offense was committed prior to October 1, 2008, if any of the essential elements of the offense occurred prior thereto.”

Acts 2008, c. 860, cl. 7, provides: “That any notice given, recognizance taken, or process or writ issued before October 1, 2008, shall be valid although given, taken, or to be returned to a day after such date, in like manner as if Title 3.2 had been effective before the same was given, taken, or issued.”

Acts 2008, c. 860, cl. 10, provides: “That the provisions of this act shall become effective on October 1, 2008.”

The cases prior to 2008 cited in the notes under the various sections of this title were decided under corresponding provisions of Titles 3 and 3.1.

Research References.

Agricultural Law (Matthew Bender) Harl.

§ 3.2-101. Department continued; appointment of Commissioner; agriculture education.

1. The Department of Agriculture and Consumer Services is continued. The Department shall be under the management and control of a Commissioner appointed by the Governor, subject to confirmation by the General Assembly, for a term coincident with that of the Governor. Any vacancy in the office of the Commissioner shall be filled by appointment by the Governor pursuant to the provisions of Article V, Section 10 of the Constitution of Virginia.
2. There shall be established, within the Department, to be administered by the Department of Agriculture Education at Virginia Polytechnic Institute and State University, a unit of specialists in agriculture education. The unit shall: (i) assist in developing and revising local agriculture curricula to integrate the Standards of Learning; (ii) provide professional development for agriculture instructional personnel to improve the quality of agriculture education; (iii) conduct site visits to the schools providing agriculture education; and (iv) seek the input of business and industry representatives regarding the content and direction of agriculture education programs in the public schools of the Commonwealth.
   1. Any required reduction in the Department’s budget shall be reflected in a proportional reduction in the operation of the agriculture education unit. The reduction in the allocation for operation of the agriculture education unit shall not exceed the percentage reduction provided for in the appropriation act for the Department.
   2. In the event that additional funds are not allocated for these positions, the Department shall not be required to absorb the costs of these positions.

History. Code 1950, § 3-7; 1966, c. 702, § 3.1-8; 1971, Ex. Sess., c. 34; 1978, c. 219; 1985, c. 397; 2004, c. 180, § 3.1-14.2; 2008, c. 860.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, §§ 6, 7.

§ 3.2-101.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title the Board, the Commissioner, or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, the Commissioner, or the Department may be sent by regular mail.

History. 2011, c. 566.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, §§ 6, 7.

§ 3.2-102. (Effective until July 1, 2022) General powers and duties of the Commissioner.

1. The Commissioner shall be vested with the powers and duties set out in § 2.2-601 , the powers and duties herein provided, and such other powers and duties as may be prescribed by law, including those prescribed in Title 59.1. He shall be the executive officer of the Board, and shall see that its orders are carried out. He shall see to the proper execution of laws relating to the Department. Unless the Governor expressly reserves such power to himself, the Commissioner shall promote, protect, and develop the agricultural interests of the Commonwealth. The Commissioner shall develop, implement, and maintain programs within the Department including those that promote the development and marketing of the Commonwealth’s agricultural products in domestic and international markets, including promotions, market development and research, marketing assistance, market information, and product grading and certification; promote the creation of new agribusiness including new crops, biotechnology and new uses of agricultural products, and the expansion of existing agribusiness within the Commonwealth; develop, promote, and maintain consumer protection programs that protect the safety and quality of the Commonwealth’s food supply through food and dairy inspection activities, industry and consumer education, and information on food safety; preserve the Commonwealth’s agricultural lands; ensure animal health and protect the Commonwealth’s livestock industries through disease control and surveillance, maintaining animal health diagnostic laboratories, and encouraging the humane treatment and care of animals; protect public health and the environment through regulation and proper handling of pesticides, agricultural stewardship, and protection of endangered plant and insect species; protect crop and plant health and productivity; ensure consumer protection and fair trade practices in commerce; develop plans and emergency response protocols to protect the agriculture industry from bioterrorism, plant and animal diseases, and agricultural pests; assist as directed by the Governor in the Commonwealth’s response to natural disasters; develop and implement programs and inspection activities to ensure that the Commonwealth’s agricultural products move freely in trade domestically and internationally; and enter into agreements with federal, state, and local governments, land grant universities, and other organizations that include marketing, plant protection, pest control, pesticides, and meat and poultry inspection.
2. In addition, the Commissioner shall:
   1. Establish and maintain a farm-to-school website. The purpose of the website shall be to facilitate and promote the purchase of Virginia farm products by schools, universities, and other educational institutions under the jurisdiction of the State Department of Education. The website shall present such current information as the availability of Virginia farm products, including the types and amount of products, and the names of and contact information for farmers, farm organizations, and businesses marketing such products; and
   2. (Effective until January 1, 2022)  Establish and operate a nonprofit, nonstock corporation under Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 as a public instrumentality exercising public and essential governmental functions to promote, develop, and sustain markets for licensed Virginia wineries and farm wineries, as defined in § 4.1-100 . Such corporation shall provide wholesale wine distribution services for wineries and farm wineries licensed in accordance with § 4.1-207 . The board of directors of such corporation shall be composed of the Commissioner and four members appointed by the Board, including one owner or manager of a winery or farm winery licensee that is not served by a wholesaler when the owner or manager is appointed to the board; one owner or manager of a winery or farm winery licensee that produces no more than 10,000 cases per year; and two owners or managers of wine wholesaler licensees. In making appointments to the board of directors, the Board shall consider nominations of winery and farm winery licensees submitted by the Virginia Wineries Association and wine wholesale licensees submitted by the Virginia Wine Wholesalers Association. The Commissioner shall require such corporation to report to him at least annually on its activities, including reporting the quantity of wine distributed for each winery and farm winery during the preceding year. The provisions of the Virginia Public Procurement Act shall not apply to the establishment of such corporation nor to the exercise of any of its powers granted under this section.

2. (Effective January 1, 2022) Establish and operate a nonprofit, nonstock corporation under Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 as a public instrumentality exercising public and essential governmental functions to promote, develop, and sustain markets for licensed Virginia wineries and farm wineries, as defined in § 4.1-100 . Such corporation shall provide wholesale wine distribution services for wineries and farm wineries licensed in accordance with § 4.1-206.1 . The board of directors of such corporation shall be composed of the Commissioner and four members appointed by the Board, including one owner or manager of a winery or farm winery licensee that is not served by a wholesaler when the owner or manager is appointed to the board; one owner or manager of a winery or farm winery licensee that produces no more than 10,000 cases per year; and two owners or managers of wine wholesaler licensees. In making appointments to the board of directors, the Board shall consider nominations of winery and farm winery licensees submitted by the Virginia Wineries Association and wine wholesale licensees submitted by the Virginia Wine Wholesalers Association. The Commissioner shall require such corporation to report to him at least annually on its activities, including reporting the quantity of wine distributed for each winery and farm winery during the preceding year. The provisions of the Virginia Public Procurement Act shall not apply to the establishment of such corporation nor to the exercise of any of its powers granted under this section.

History. Code 1950, §§ 3-7, 3-9, 3-13; 1966, c. 702, §§ 3.1-8, 3.1-10, 3.1-14; 1971, Ex. Sess., c. 34; 1975, c. 260; 1977, c. 186; 1978, cc. 219, 540; 1982, c. 150; 1985, c. 397; 1993, c. 455; 1994, cc. 261, 370; 1995, c. 10; 1996, c. 996; 2005, c. 633; 2007, cc. 352, 870, 932, §§ 3.1-14.4, 3.1-14.01; 2008, c. 860; 2012, cc. 803, 835; 2020, cc. 1113, 1114.

Cross references.

As to restricted wholesale wine licenses, see § 4.1-207.1 .

As to conditions under which Virginia Alcoholic Beverage Control Board of Directors shall refuse to grant licenses, see § 4.1-223 .

Editor’s note.

Acts 2007, cc. 870 and 932, in cl. 3 provide: “That the Commissioner of Agriculture and Consumer Services shall implement the provisions of this act consistent with an opinion of the Attorney General dated April 18, 2006, within 90 days of the effective date of this act [April 4, 2007].”

Effective July 1, 2018, Acts 2007, cc. 870 and 932, cl. 4, as amended by Acts 2015, cc. 38 and 730, cl. 2, provides: “That the Virginia Alcoholic Beverage Control Authority shall assist the Commissioner of Agriculture and Consumer Services in the formation and operation of the nonprofit, nonstock corporation established pursuant to § 3.1-14.01 of this act.”

Acts 2012, cc. 803 and 835, cl. 16 provides: “That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of the 13th enactment of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of the 13th enactment of this act, provided that any such transfer shall be limited to salary and fringe benefits for any personnel transferred and reasonable administrative overhead and costs.”

Acts 2020, c. 571, cl. 1 provides: “§ 1. The Department of Agriculture and Consumer Services (the Department) shall investigate and enter into negotiations for the involvement of the Commonwealth in the whole or partial operation or management of the Virginia Horse Center Foundation (the Foundation), including the addition of state-appointed members to the Board of Directors of the Foundation. In investigating, the Department may take any steps necessary to accomplish the investigation, including negotiations with the Board of Directors, but shall not expend state funds for the purchase, transfer, or lease of real property unless specifically appropriated for that purpose or approved by the General Assembly.”

Acts 2020, cc. 1113 and 1114, cl. 3, as amended by Acts 2021, Sp. Sess. I, c. 82, cls. 2 and 3, provides: “That the provisions of the first, second, and fourth enactments of this act shall become effective on January 1, 2022, except for the provisions of the first enactment that amend the definition of low alcohol beverage cooler set forth in § 4.1-100 of the Code of Virginia, as amended by this act, which shall become effective July 1, 2020.”

Acts 2020, cc. 1113 and 1114, cl. 7 provides: “That any farm winery, limited brewery, or limited distillery that, prior to July 1, 2016, (i) holds a valid license granted by the Board of Directors of the Virginia Alcoholic Beverage Control Authority (the Board) in accordance with Title 4.1 of the Code of Virginia and (ii) is in compliance with the local zoning ordinance as an agricultural district or classification or as otherwise permitted by a locality for farm winery, limited brewery, or limited distillery use shall be allowed to continue such use as provided in § 15.2-2307 of the Code of Virginia, notwithstanding (a) the provisions of § 4.1-206.1 of the Code of Virginia, as created by this act, or (b) a subsequent change in ownership of the farm winery, limited brewery, or limited distillery on or after July 1, 2016, whether by transfer, acquisition, inheritance, or other means. Any such farm winery, limited brewery, or limited distillery located on land zoned residential conservation prior to July 1, 2016, may expand any existing building or structure and the uses thereof so long as specifically approved by the locality by special exception. Any such farm winery, limited brewery, or limited distillery located on land zoned residential conservation prior to July 1, 2016, may construct a new building or structure so long as specifically approved by the locality by special exception. All such licensees shall comply with the requirements of Title 4.1 of the Code of Virginia and Board regulations for renewal of such license or the issuance of a new license in the event of a change in ownership of the farm winery, limited brewery, or limited distillery on or after July 1, 2016.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 13, are identical, and deleted former subdivisions B 1, B 2, and B 3, and redesignated the following subdivisions accordingly.

The 2012 amendments by cc. 803 and 835, cl. 106, effective January 1, 2013, are identical, and purported to delete subdivision B 1 and make an internal reference change in subdivision B 3. Both subdivisions B 1 and B 3 were deleted by cl. 13 of cc. 803 and 835, effective July 1, 2012.

The 2020 amendments.

The 2020 amendments by cc. 1113 and 1114, effective January 1, 2022, are identical, and in subdivision B 2, substituted “§ 4.1-206.1 ” for “§ 4.1-207 ” in the second sentence.

The 2022 amendments.

The 2022 amendments by cc. 554 and 609 are identical, and added subdivision B 3 and made stylistic changes.

§ 3.2-102. (Effective July 1, 2022) General powers and duties of the Commissioner.

1. The Commissioner shall be vested with the powers and duties set out in § 2.2-601 , the powers and duties herein provided, and such other powers and duties as may be prescribed by law, including those prescribed in Title 59.1. He shall be the executive officer of the Board, and shall see that its orders are carried out. He shall see to the proper execution of laws relating to the Department. Unless the Governor expressly reserves such power to himself, the Commissioner shall promote, protect, and develop the agricultural interests of the Commonwealth. The Commissioner shall develop, implement, and maintain programs within the Department including those that promote the development and marketing of the Commonwealth’s agricultural products in domestic and international markets, including promotions, market development and research, marketing assistance, market information, and product grading and certification; promote the creation of new agribusiness including new crops, biotechnology and new uses of agricultural products, and the expansion of existing agribusiness within the Commonwealth; develop, promote, and maintain consumer protection programs that protect the safety and quality of the Commonwealth’s food supply through food and dairy inspection activities, industry and consumer education, and information on food safety; preserve the Commonwealth’s agricultural lands; ensure animal health and protect the Commonwealth’s livestock industries through disease control and surveillance, maintaining animal health diagnostic laboratories, and encouraging the humane treatment and care of animals; protect public health and the environment through regulation and proper handling of pesticides, agricultural stewardship, and protection of endangered plant and insect species; protect crop and plant health and productivity; ensure consumer protection and fair trade practices in commerce; develop plans and emergency response protocols to protect the agriculture industry from bioterrorism, plant and animal diseases, and agricultural pests; assist as directed by the Governor in the Commonwealth’s response to natural disasters; develop and implement programs and inspection activities to ensure that the Commonwealth’s agricultural products move freely in trade domestically and internationally; and enter into agreements with federal, state, and local governments, land grant universities, and other organizations that include marketing, plant protection, pest control, pesticides, and meat and poultry inspection.
2. In addition, the Commissioner shall:
   1. Establish and maintain a farm-to-school website. The purpose of the website shall be to facilitate and promote the purchase of Virginia farm products by schools, universities, and other educational institutions under the jurisdiction of the State Department of Education. The website shall present such current information as the availability of Virginia farm products, including the types and amount of products, and the names of and contact information for farmers, farm organizations, and businesses marketing such products;
   2. Establish and operate a nonprofit, nonstock corporation under Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 as a public instrumentality exercising public and essential governmental functions to promote, develop, and sustain markets for licensed Virginia wineries and farm wineries, as defined in § 4.1-100 . Such corporation shall provide wholesale wine distribution services for wineries and farm wineries licensed in accordance with § 4.1-206.1 . The board of directors of such corporation shall be composed of the Commissioner and four members appointed by the Board, including one owner or manager of a winery or farm winery licensee that is not served by a wholesaler when the owner or manager is appointed to the board; one owner or manager of a winery or farm winery licensee that produces no more than 10,000 cases per year; and two owners or managers of wine wholesaler licensees. In making appointments to the board of directors, the Board shall consider nominations of winery and farm winery licensees submitted by the Virginia Wineries Association and wine wholesale licensees submitted by the Virginia Wine Wholesalers Association. The Commissioner shall require such corporation to report to him at least annually on its activities, including reporting the quantity of wine distributed for each winery and farm winery during the preceding year. The provisions of the Virginia Public Procurement Act shall not apply to the establishment of such corporation nor to the exercise of any of its powers granted under this section; and
   3. Promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) not inconsistent with the laws of Virginia necessary to carry out the provisions of Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2. Such regulations may include penalties for violations.

History. Code 1950, §§ 3-7, 3-9, 3-13; 1966, c. 702, §§ 3.1-8, 3.1-10, 3.1-14; 1971, Ex. Sess., c. 34; 1975, c. 260; 1977, c. 186; 1978, cc. 219, 540; 1982, c. 150; 1985, c. 397; 1993, c. 455; 1994, cc. 261, 370; 1995, c. 10; 1996, c. 996; 2005, c. 633; 2007, cc. 352, 870, 932, §§ 3.1-14.4, 3.1-14.01; 2008, c. 860; 2012, cc. 803, 835; 2020, cc. 1113, 1114; 2022, cc. 554, 609.

§ 3.2-103. Records to be held in confidence.

The Commissioner shall hold the following records of the Department in confidence unless otherwise directed by the Governor or the Board:

1. Schedules of work for regulatory inspection;
2. Trade secrets and commercial or financial information supplied by individuals or business entities to the Department;
3. Reports of criminal violations made to the Department by persons outside the Department;
4. Records of active investigations until the investigations are closed;
5. Financial records of applicants for assistance from the Virginia Farm Loan Revolving Account except those records that are otherwise a matter of public record; and
6. Tax returns required by the agricultural commodity boards established pursuant to this title to the extent necessary to protect the privacy of individual taxpayers.

History. Code 1950, § 3-13; 1966, c. 702, § 3.1-14; 1975, c. 260; 1977, c. 186; 1978, cc. 219, 540; 1982, c. 150; 1993, c. 455; 1994, cc. 261, 370; 1995, c. 10; 1996, c. 996; 2005, c. 633; 2008, c. 860.

§ 3.2-104. Commissioner may serve on board of national tobacco trust entity.

The Commissioner may serve in his official capacity on the board of directors of any entity established to ensure the implementation in the Commonwealth of a national tobacco trust established to provide payments to tobacco growers and tobacco quota owners to ameliorate adverse economic consequences resulting from a national settlement of states’ claims against tobacco manufacturers.

History. 2000, c. 1048, § 3.1-14.1; 2008, c. 860.

§ 3.2-105. Century farm program.

The Commissioner shall establish a century farm program to honor farm families in the Commonwealth whose property has been in the same family for 100 years or more. In order to be eligible for recognition under the program, a farm shall (i) have been owned by the same family for at least 100 consecutive years; (ii) be lived on, or actually farmed, by a descendant of the original owners; and (iii) gross more than $2,500 annually from the sale of farm products.

History. 1997, c. 161, § 3.1-17.1; 1999, c. 346; 2008, c. 860; 2016, c. 6.

The 2016 amendments.

The 2016 amendment by c. 6, substituted “descendant” for “descendent” in the last sentence and deleted the former last sentence, which read “At the discretion of the Commissioner, a farm that does not gross more than $2,500 annually but is being used for a bona fide silvicultural purpose may be recognized under the program.”

§ 3.2-106. Horse breeder incentive program.

1. It is the policy of the Commonwealth to encourage the growth of all segments of its agricultural industry. The General Assembly finds that the horse breeding industry has a significant impact on the Commonwealth’s economy and that it is to the Commonwealth’s benefit to encourage, expand, and develop horse breeding farms with programs providing financial incentives to breeders that will encourage and supplement private capital.
2. To the extent that public or private funds become available, the Department may establish a program of financial incentives designed to encourage, expand, and develop the breeding of horses in the Commonwealth. The Department shall adopt appropriate regulations for the administration of the program. Such regulations shall provide for the distribution of financial awards to breeders only to the extent that public funds made available to the Department for the program are matched dollar for dollar by private funds. The regulations shall also provide that no single breeder shall receive, in any one calendar year, more than 10 percent of the public funds made available to the Department for the program during that year. Awards made under any such incentive program shall be limited to horses foaled in the Commonwealth that are owned by breeders who are actively engaged in the breeding of horses in the Commonwealth.

History. 1981, c. 140, § 3.1-741.2; 2008, c. 860.

§ 3.2-107. Testing samples of products delivered to laboratories; prescribing and collecting fees; Laboratory Fee Fund established; disposition of moneys.

1. The Commissioner may have tested samples of manufactured, processed, or natural products delivered to laboratories operated by the Division of Consolidated Laboratory Services or the Department and prescribe and collect reasonable fees for the services rendered.
2. All fees and moneys collected or received by the Commissioner or the Department in its official capacity for the testing of samples of manufactured, processed, or natural products shall be paid into the Laboratory Fee Fund.
3. There is hereby created in the state treasury a special nonreverting fund to be known as the Laboratory Fee Fund, hereinafter referred to as the Fund. The Fund shall be established on the books of the Comptroller. All fees collected pursuant to this section 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 the costs of the testing provided for in this section. 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.

History. Code 1950, §§ 3-13.1, 3-13.2; 1964, c. 163; 1966, c. 702, §§ 3.1-15, 3.1-16; 1972, c. 741; 1978, cc. 219, 702; 2008, c. 860.

§ 3.2-108. Department to establish a program to support new and emerging crops and technologies.

1. From such funds as may be appropriated for such purposes and from gifts, donations, grants, bequests, and other funds as may be received, the Department shall establish a program to:
   1. Encourage the production of alternative crops in the Commonwealth that may be used as a feedstock for energy generation and transportation, thereby supporting farmers and farm communities in their efforts to: (i) sustain and enhance economically viable business opportunities in agriculture; (ii) reduce nonpoint source pollution in the Chesapeake Bay and other waters of the Commonwealth; (iii) restore depleted soils; (iv) provide wildlife habitat; (v) reduce greenhouse gases; and (vi) reduce the country’s dependence on foreign supplies of energy;
   2. Assist the development of bioenergy feedstock crop technologies, including but not limited to, seed stock supplies, production technology, harvest equipment, transportation infrastructure and storage facilities;
   3. Identify and assist in the development of commercially viable bioenergy market opportunities, including recruitment, expansion and establishment of renewable bioenergy businesses in Virginia; and
   4. Promote the aquaculture of the species that are natives to or reside within the waters of the Chesapeake Bay and the Virginia Coast, in concert with the efforts of Virginia higher education institutions and the Virginia Marine Resources Commission, with a focus on assisting “traditional watermen” who rely on harvesting marine fish and shellfish. This effort shall also include watermen who are viable working participants of the aquaculture industry as contract growers, cooperatives or other business entities.
2. The Department shall provide funds in the form of grants to accomplish the objectives described in subsection A. The Department shall develop guidelines for the operation of the program that shall include, at a minimum, eligibility criteria for receiving grant awards, financial accountability for receiving grant awards, allowable uses of grant funds, and agricultural programmatic priorities. The Department shall consult with the Department of Conservation and Recreation and the U.S. Department of Agriculture’s Natural Resources Conservation Service, when appropriate, to ensure compatibility with existing cost-share and other agricultural incentive programs.

History. 2007, c. 806, § 3.1-14.5; 2008, c. 860.

§ 3.2-108.1. Virginia Pollinator Protection Strategy.

1. The Department shall develop and maintain a Virginia Pollinator Protection Strategy (the Strategy) to (i) promote the health of and mitigate the risks to all pollinator species and (ii) ensure a robust agriculture economy and apiary industry for honeybees and other managed pollinators.
2. In developing the Strategy, the Department shall seek the assistance of the Department of Conservation and Recreation, the Department of Wildlife Resources, and the Department of Environmental Quality and shall establish a stakeholder group composed of representatives of affected groups, including beekeepers, agricultural producers, commercial pesticide applicators, private pesticide applicators, pesticide manufacturers, retailers, lawn and turf service providers, agribusiness and farmer organizations, conservation interests, Virginia Polytechnic Institute and State University, Virginia State University, and the Virginia Cooperative Extension.
3. The Strategy shall include a plan for the protection of managed pollinators that provides voluntary best management practices for pesticide users, beekeepers, and landowners and agricultural producers. The protection plan shall support:
   1. Communication between beekeepers and applicators;
   2. Reduction of the risk to pollinators from pesticides;
   3. Increases in pollinator habitat;
   4. Maintenance of existing compliance with state pesticide use requirements;
   5. Identification of needs for further research to promote robust agriculture and apiary industries; and
   6. Identification of additional opportunities for education and outreach on pollinators.

History. 2016, c. 11; 2020, c. 958.

Editor’s note.

Acts 2016, c. 11, cl. 2 provides: “That the Department of Agriculture and Consumer Services shall, no later than July 1, 2017, provide an interim report on the Virginia Pollinator Protection Strategy (the Strategy) to the Senate Committee on Agriculture, Conservation and Natural Resources, the House Committee on Agriculture, Chesapeake and Natural Resources, and the Board of Agriculture and Consumer Services (the Board) and shall, upon completion of the Strategy but not later than July 1, 2018, report on the Strategy to those committees and the Board.”

Acts 2021, Sp. Sess. I, c. 458, cl. 1 provides: “That the Department of Agriculture and Consumer Services (the Department) shall study the Beekeeper Pollinator Protection Plan and voluntary best management practices, authorized pursuant to § 3.2-108.1 of the Code of Virginia, for the purpose of proposing improvements to communication between beekeepers and applicators to further reduce the risk to pollinators from neonicotinoid pesticides. In conducting its study, the Department may establish a stakeholder working group composed of representatives of affected groups, including beekeepers, agricultural producers, commercial pesticide applicators, private pesticide applicators, pesticide manufacturers, retailers, lawn and turf service providers, the Virginia Farm Bureau, the Virginia Agribusiness Council, other agribusiness and farmer organizations, and the Virginia Cooperative Extension. The Department shall, no later than December 1, 2021, provide a report on its findings to the Chairman of the Senate Committee on Agriculture, Conservation and Natural Resources and the Chairman of the House Committee on Agriculture, Chesapeake and Natural Resources.”

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subsection B.

§ 3.2-108.2. (Effective July 1, 2022) Expansion of the Commonwealth’s slaughter and meat-processing facilities.

1. It is the policy of the Commonwealth to encourage the growth of all segments of its agricultural industry. The General Assembly finds that the livestock industry has a significant impact on the Commonwealth’s economy and that it is to the Commonwealth’s benefit to encourage, expand, and develop slaughter and meat-processing facilities with strategic planning and programs that provide financial incentives and technical assistance to encourage and supplement private capital. The General Assembly finds that it is to the Commonwealth’s benefit to maintain a state meat inspection program in cooperation with the U.S. Department of Agriculture.
2. The Department shall establish a strategic plan to increase the combined throughput capacity of inspected slaughter and meat-processing facilities in the Commonwealth and provide recommendations to the General Assembly as to how to implement the strategic plan.
3. To the extent that public or private funds become available, the Department may establish a program of financial incentives and technical assistance designed to encourage, expand, and develop slaughter and meat-processing facilities in the Commonwealth.

History. 2022, cc. 310, 311.

Editor's note.

Acts 2022, cc. 310 and 311, cl. 2 provides: “That the Department of Agriculture and Consumer Services shall develop a five-year strategic plan to achieve an increase in the total combined throughput capacity of inspected slaughter and meat-processing facilities. The strategic plan shall be completed by January 1, 2023.”

§ 3.2-109. Board of Agriculture and Consumer Services; appointments; qualifications; terms of office.

The Board of Agriculture and Consumer Services is established as a policy board, within the meaning of § 2.2-2100 , in the executive branch of state government and may adopt regulations in accordance with the provisions of this title. The Board shall consist of (i) one member from each congressional district, at least eight of whom shall be currently practicing farmers, and (ii) two at-large members, one of whom shall be a structural commercial applicator of pesticides and one of whom shall be engaged in the commercial sale or application of agricultural pesticides; all members to be appointed by the Governor for a term of four years and confirmed by the General Assembly. The presidents of the Virginia Polytechnic Institute and State University and Virginia State University or their designees shall be ex officio members of the Board with voting privileges. All members of the Board shall be citizens of the Commonwealth. No member of the Board, except the ex officio members, shall be eligible for more than two successive terms; provided that persons appointed to fill vacancies may serve two additional successive terms after the terms of the vacancies they were appointed to fill have expired. All vacancies in the membership of the Board shall be filled by the Governor for the unexpired term.

History. Code 1950, § 3-1 ; 1952, c. 175; 1956, c. 37; 1966, c. 702, § 3.1-1 ; 1971, Ex. Sess., c. 135; 1978, c. 219; 1985, c. 397; 1992, c. 121; 2008, c. 860; 2011, cc. 98, 185; 2012, cc. 803, 835.

Editor’s note.

Acts 2016, c. 319, cl. 1 provides: “That the Board of Agriculture and Consumer Services shall adopt regulations that determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals.”

Acts 2017, c. 395, cl. 3 provides: “That, beginning July 1, 2017, the term of any member appointed to the Board of Agriculture and Consumer Services pursuant to § 3.2-109 of the Code of Virginia that is set to expire on February 28 shall be extended to June 30 of that year.”

The 2011 amendments.

The 2011 amendments by cc. 98 and 185 are identical, and in the third sentence, inserted “or their designees” and added “with voting privileges.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 31, are identical, and inserted “of Agriculture and Consumer Services” in the first sentence; in the second sentence, inserted the clause (i) designation, and therein substituted “at least eight” for “at least seven,” added clause (ii), inserted “all members to be,” and made a minor stylistic change; and inserted the fourth sentence.

§ 3.2-110. Officers of the Board; meetings.

1. The Board shall annually elect a president, vice president, and secretary.
2. The Board shall meet at least three times a year for the transaction of business. Special meetings may be held at any time upon the call of the president of the Board, the request of the Commissioner, or the written request of a majority of the Board members.

History. Code 1950, §§ 3-2, 3-3; 1966, c. 702, §§ 3.1-2, 3.1-3; 1978, c. 219; 2008, c. 860.

Cross references.

As to president of Board being member of board of visitors of Virginia Polytechnic Institute and State University, see § 23.1-2601 .

§ 3.2-111. General powers and duties of the Board.

1. The Board shall be charged with all matters tending to the promotion of the agricultural interests of the Commonwealth. It shall have power to receive, hold in trust, and administer any donation made to it for the advancement of the agricultural interests of the Commonwealth.
2. The Board shall have power to purchase or lease land, not to exceed 1,000 acres, for the programs of the Department, and shall regulate and prescribe the salaries of such officers and employees of the Department who shall be employed in such programs.
3. The Board shall also be required to advise the Governor on the state of the agricultural industry and to advise him on promoting the development of the industry; encouraging persons, agencies, organizations, and industries to develop the industry; working closely with all agencies concerned with rural resources development; coordinating efforts toward maximum farm and off-farm employment; examining marketing procedures and new techniques for selling the Commonwealth’s farm products; formulating plans for developing new markets for such products; and such other matters as the Governor may request.
4. The Board shall not adopt any regulation that prohibits or restricts a person, his immediate family, or his guests from consuming products or commodities grown or processed on his property provided that the products or commodities are not offered for sale to the public.
5. The Board shall oversee the development of a farmers market system.
6. To carry out the provisions of Chapter 39 (§ 3.2-3900 et seq.).

History. Code 1950, § 3-4; 1966, c. 702, § 3.1-4; 1972, c. 531; 1985, c. 173, § 3.1-4.1; 1994, c. 370; 2001, cc. 17, 398; 2005, c. 882, § 3.1-14.3; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 31, are identical, and in added subsection F.

§ 3.2-112. Regulations governing the conduct of referenda.

The Board shall adopt regulations governing the ballots to be used in any referendum, the conduct of any referendum, canvassing the results thereof, and declaring the results of any referendum provided for in this title. The Board shall fix the date, hours, and voting places with respect to the holding of any referendum and may provide for voting by mail. No requirement of this section shall be governed by Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act.

History. 1970, cc. 310, 431, §§ 3.1-796.17, 3.1-684.6; 1980, cc. 316, 395, §§ 3.1-796.06, 3.1-1036; 1982, c. 126, § 3.1-684.25; 1983, c. 375; 1991, c. 587, § 3.1-684.45; 1995, c. 691, § 3.1-1068; 1997, c. 873, § 3.1-1084; 2005, cc. 497, 588, 864, 875, §§ 3.1-22.59, 3.1-636.2; 2008, c. 860.

Law Review.

For an article, “Administrative Procedure,” see 31 U. Rich. L. Rev. 907 (1997).

§§ 3.2-113 through 3.2-115. Repealed by Acts 2013, c. 24, cl. 2.

Editor’s note.

Former § 3.2-113, pertaining to the Office of Consumer Affairs, derived from Acts 1970, c. 777, § 3.1-18.1; 1978, cc. 219, 396; 2008, c. 860. Former § 3.2-114, pertaining to powers and duties of Office of Consumer Affairs, derived from Acts 1970, c. 777, § 3.1-18.2; 1978, c. 219; 1986, c. 30; 1995, c. 703; 2008, c. 860; 2012, cc. 803, 835. Former § 3.2-115, pertaining to payment of expenses of Office of Consumer Affairs, derived from Acts 1970, c. 777, § 3.1-18.3; 1978, c. 219; 2008, c. 860.

§ 3.2-200. Agricultural Vitality Program continued as Office of Farmland Preservation.

The Agricultural Vitality Program within the Department is continued and hereafter shall be known as the Office of Farmland Preservation.

History. 2001, c. 521, § 3.1-18.9; 2008, c. 860.

§ 3.2-201. Powers and duties of Office of Farmland Preservation.

1. The Office of Farmland Preservation shall have the following powers and duties:
   1. To develop, in cooperation with the Department of Small Business and Supplier Diversity, the Virginia Farm Bureau Federation, the American Farmland Trust, the Virginia Land Conservation Foundation, the Virginia Outdoors Foundation, the Virginia Association of Counties, and the Virginia Cooperative Extension: (i) model policies and practices that may be used as a guide to establish local purchase of development rights programs; (ii) criteria for the certification of local purchase of development rights programs as eligible to receive grants, loans or other funds from public sources; and (iii) methods and sources of revenue for allocating funds to localities to purchase agricultural conservation easements;
   2. To create programs to educate the public about the importance of farmland preservation to the quality of life in the Commonwealth;
   3. To provide technical, professional, and other assistance to farmers on matters related to farmland preservation;
   4. To provide technical, professional, and other assistance to local governments interested in developing additional farmland preservation policies and programs. Such policies and programs shall include (i) use value assessment and taxation pursuant to §§ 58.1-3230 and 58.1-3231 ; (ii) transfer of development rights pursuant to Article 7.1 (§ 15.2-2316.1 et seq.) of Chapter 22 of Title 15.2; (iii) agricultural and forestal districts pursuant to Chapter 43 (§ 15.2-4300 et seq.) of Title 15.2; and (iv) establishment of local lease of development rights; and
   5. To administer the Virginia Farm Link program established pursuant to § 3.2-202.
2. State grants shall be distributed to local purchase of development rights programs under policies, procedures, and guidelines developed by the Office of Farmland Preservation. In general, for each $1 in grant moneys awarded by the Office, the applicable local purchase of development rights program of the county or city shall be required to provide a $1 match. However, as part of these policies, procedures, and guidelines developed by the Office, the Office shall include incentives that recognize and encourage counties and cities participating in use value taxation pursuant to Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1.
3. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Farmland Preservation Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. The Fund shall consist of all moneys appropriated to it by the General Assembly and such moneys as may be made available from any other source, public or private. All moneys 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 carrying out the provisions 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.

History. 2001, c. 521, § 3.1-18.10; 2008, cc. 530, 860; 2009, c. 389; 2011, cc. 95, 160; 2013, c. 482.

Cross references.

As to appropriations for land preservation in budget bill, see § 2.2-1509.4 .

Editor’s note.

Acts 2008, c. 530, amended former § 3.1-18.10, from which this section is derived. Pursuant to § 30-152, the 2008 amendment by c. 530 has been given effect in this section as set out above by inserting the subsection A designation and adding subsection B.

The 2009 amendments.

The 2009 amendment by c. 389 added subdivision A 4 and redesignated former subdivision A 4 as subdivision A 5.

The 2011 amendments.

The 2011 amendments by cc. 95 and 160 are identical, and added subsection C.

The 2013 amendments.

The 2013 amendment by c. 482, effective January 1, 2014, substituted “Small Business and Supplier Diversity,” for “Business Assistance” near the beginning of subdivision A 1.

§ 3.2-202. Virginia Farm Link program.

There is hereby created the Virginia Farm Link program to provide assistance to retiring farmers and individuals seeking to become active farmers in the transition of farm businesses and properties from retiring farmers to active farmers. Such assistance shall include: (i) assistance in the preparation of business plans for the transition of business interests; (ii) assistance in the facilitation of transfers of existing properties and agricultural operations to interested buyers; (iii) information on innovative farming methods and techniques; and (iv) research assistance on agricultural, financial, marketing, and other matters.

History. 2001, c. 521, § 3.1-18.11; 2008, c. 860.

§ 3.2-203. Reporting requirements.

The Commissioner shall submit a written report on the operation of the Office of Farmland Preservation by December 1 of each year to the chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources. The provisions of this chapter shall not preclude local purchase of development rights programs established pursuant to the Open-Space Land Act (§ 10.1-1700 et seq.) from being eligible to receive grants, loans, or other funds from public sources.

History. 2001, c. 521, § 3.1-18.12; 2008, c. 860.

§ 3.2-204. Review of capital projects.

In preparing its report on each major state project, as required in Article 2 (§ 10.1-1188 et seq.) of Chapter 11.1 of Title 10.1, each state agency shall demonstrate that it has considered the impact that project would have on farm and forest lands as required in § 3.2-205, and has adequately considered alternatives and mitigating measures. The Department of Environmental Quality, in conducting its review of each major state project, shall ensure that such consideration has been demonstrated and shall incorporate its evaluation of the effects that project would have on farm and forest lands in its comments to the Governor. The procedures for review of highway and road construction projects established in accordance with subsection B of § 10.1-1188 shall include provisions requiring that the factors listed in § 3.2-205 are considered as part of the review of each project.

History. 1981, c. 635, § 3.1-18.8; 1982, c. 417; 2000, cc. 22, 778; 2008, c. 860.

§ 3.2-205. Characteristics to be considered in evaluating impacts on farm and forest lands.

1. In preparing environmental impact reports in accordance with § 3.2-204, state agencies shall consider the impact of the major state project on all farm and forest lands that:
   1. Have soil classified as capability class I, II, III, or IV;
   2. Have an exceptional combination of physical characteristics for the production of food, feed, fiber, forest products, forage, oilseed, and other agricultural crops with minimum inputs of fuel, fertilizer, pesticides, and labor, and without intolerable soil erosion;
   3. Are valuable for production of specific high-value food and fiber crops, such as fruits, vegetables, and nursery crops and have a special combination of soil quality, location, growing season, and moisture supply needed to economically produce sustained high quality or high yields of such crops when treated and managed according to acceptable farming methods;
   4. Are of statewide or local importance for the production of food, feed, fiber, forest products, forage, or oilseed crops;
   5. Have been recognized under a state program such as the Clean Water Farm Award or the Century Farm Program;
   6. Are part of an agricultural or forestal district or are participating in a use value assessment and taxation program for real estate devoted to agricultural, horticultural, or forest use in accordance with the provisions of Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1; or
   7. Make a significant contribution to the local economy or the rural character of the area where the land is located.
2. The governing body of each locality, with the cooperation of the U.S. Department of Agriculture, may designate the important farmlands within its jurisdiction. In designating important farmlands the governing body shall demonstrate that adequate provision has been made for nonagricultural uses within its jurisdiction.
3. As used in this chapter, “farmland” includes all land defined as follows:“Important farmland,” other than prime or unique farmland, is land that is of statewide or local importance for the production of food, feed, fiber, forage, nursery, oilseed, or other agricultural crops, as determined by the appropriate state agency or local government agency, and that the U.S. Department of Agriculture determines should be considered as farmland for the purposes of this chapter;“Prime farmland” is land that has the best combination of physical and chemical characteristics for producing food, feed, fiber, forage, oilseed, nursery, and other agricultural crops with minimum inputs of fuel, fertilizer, pesticides, and labor, and without intolerable soil erosion. Prime farmland includes land that possesses the above characteristics but is being used currently to produce livestock and timber. It does not include land already in or committed to urban development or water storage; and“Unique farmland” is land other than prime farmland that is used for production of specific high-value food and fiber crops, as determined by the U.S. Department of Agriculture. It has the special combination of soil quality, location, growing season, and moisture supply needed to economically produce sustained high quality or high yields of specific crops when treated and managed according to acceptable farming methods.

History. 1981, c. 635, § 3.1-18.5; 1982, c. 417; 2000, cc. 22, 778; 2003, c. 384; 2008, c. 860.

Cross references.

As to Century Farm Program, see § 3.2-105.

As to Clean Water Farm Award Program, see § 10.1-104.3 .

§ 3.2-206. Repealed by Acts 2017, c. 5, cl. 2.

Editor’s note.

Former § 3.2-206, which required agencies to prepare plans for implementation of policy to review capital projects with respect to the impact on farm and forest land, derived from 1981, c. 635, § 3.1-18.6; 1982, c. 417; 1984, c. 750; 1989, c. 656; 2000, cc. 22, 778; 2006, c. 490; 2008, c. 860; 2009, c. 585.

§ 3.2-300. (Effective until July 1, 2022) Definitions.

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

“Agricultural operation” means any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silviculture activity.

“Production agriculture and silviculture” means the bona fide production or harvesting of agricultural or silvicultural products but shall not include the processing of agricultural or silvicultural products or the above ground application or storage of sewage sludge.

History. 1981, c. 384, §§ 3.1-22.28, 3.1-22.29; 1991, c. 293; 1994, c. 779; 2007, c. 444; 2008, c. 860.

Cross references.

As to restrictions on local regulation of certain agricultural operations, see § 15.2-2288.6 .

As to manner of installing underground utility lines through agricultural operation, see § 56-257.5.

Editor's note.

Acts 2022, c. 487, cl. 2 provides: “That the provisions of this act are declarative of existing law.”

The 2022 amendments.

The 2022 amendment by c. 487 added the last sentence in the definition of “Agricultural operation.”

Research References.

Agricultural Law (Matthew Bender). Harl.

OPINIONS OF THE ATTORNEY GENERAL

“Agricultural operation.” —

Aquaculture not an agricultural operation under the Virginia Right to Farm Act. See opinion of Attorney General to The Honorable Brenda L. Pogge, Member, House of Delegates, 11-127, 2012 Va. AG LEXIS 11 (3/9/12).

§ 3.2-300. (Effective July 1, 2022) Definitions.

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

“Agricultural operation” means any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silviculture activity. It shall also include the housing of livestock, as defined in § 3.2-6500.

“Production agriculture and silviculture” means the bona fide production or harvesting of agricultural or silvicultural products but shall not include the processing of agricultural or silvicultural products or the above ground application or storage of sewage sludge.

History. 1981, c. 384, §§ 3.1-22.28, 3.1-22.29; 1991, c. 293; 1994, c. 779; 2007, c. 444; 2008, c. 860; 2022, c. 487.

§ 3.2-301. Right to farm; restrictive ordinances.

In order to limit the circumstances under which agricultural operations may be deemed to be a nuisance, especially when nonagricultural land uses are initiated near existing agricultural operations, no locality shall adopt any ordinance that requires that a special exception or special use permit be obtained for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification. Localities may adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture and silviculture activity is occurring within the locality that is zoned as an agricultural district or classification. No locality shall enact zoning ordinances that would unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety, and general welfare of its citizens. This section shall become effective on April 1, 1995, and from and after that date all land zoned to an agricultural district or classification shall be in conformity with this section.

History. 1981, c. 384, § 3.1-22.28; 1991, c. 293; 1994, c. 779; 2007, c. 444; 2008, c. 860; 2014, c. 246.

Editor's note.

Acts 2022, c. 356, cl. 4 provides: “That nothing in this act shall be construed to limit or impact § 3.2-301 or 15.2-2288.6 of the Code of Virginia.”

The 2014 amendments.

The 2014 amendment by c. 246 substituted “locality” for “county” in the first sentence and substituted “Localities” for “Counties” at the beginning of the second sentence.

Law Review.

For Essay, “The Grapes of Wrath: Encouraging Fruitful Collaborations Between Local Governments and Farm Wineries in the Commonwealth,” see 48 U. Rich. L. Rev. 235 (2013).

OPINIONS OF THE ATTORNEY GENERAL

“Agricultural operation.” —

Aquaculture not an agricultural operation under the Virginia Right to Farm Act. See opinion of Attorney General to The Honorable Brenda L. Pogge, Member, House of Delegates, 11-127, 2012 Va. AG LEXIS 11 (3/9/12).

Authorizing agricultural uses in a rural residential zoning district does not create a zoning classification. —

Allowing agriculture “by right” in areas zoned “Rural Residential” does not constitute a zoning classification as used in § 3.2-301. See opinion of Attorney General to the Honorable Brenda L. Pogge, Member, House of Delegates, 11-132, 2013 Va. AG LEXIS 41 (6/21/13).

§ 3.2-302. When agricultural operations do not constitute nuisance.

1. No agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, if such operations are conducted in substantial compliance with any applicable best management practices in use by the operation at the time of the alleged nuisance and with any applicable laws and regulations of the Commonwealth relevant to the alleged nuisance. No action shall be brought by any person against any agricultural operation the existence of which was known or reasonably knowable when that person’s use or occupancy of his property began.The provisions of this section shall apply to any nuisance claim brought against any party that has a business relationship with the agricultural operation that is the subject of the alleged nuisance. The provisions of this section shall not apply to any action for negligence or any tort other than a nuisance.For the purposes of this subsection, “substantial compliance” means a level of compliance with applicable best management practices, laws, or regulations such that any identified deficiency did not cause a nuisance that created a significant risk to human health or safety. Agricultural operations shall be presumed to be in substantial compliance absent a contrary showing.
2. The provisions of subsection A shall not affect or defeat the right of any person to recover damages for any injuries or damages sustained by them on account of any pollution of, or change in condition of, the waters of any stream or on the account of any overflow of lands of any such person.
3. Only persons with an ownership interest in the property allegedly affected by the nuisance may bring an action for private nuisance. Any compensatory damages awarded to any person for a private nuisance action not otherwise prohibited by this section, where the alleged nuisance emanated from an agricultural operation, shall be measured as follows:
   1. For a permanent nuisance, by the reduction in fair market value of the person’s property caused by the nuisance, but not to exceed the fair market value of the property; or
   2. For a temporary nuisance, by the diminution of the fair rental value of the person’s property.The combined recovery from multiple actions for private nuisance brought against any agricultural operation by any person or that person’s successor in interest shall not exceed the fair market value of the subject property, regardless of whether any subsequent action is brought against a different defendant than any preceding action.
4. Notwithstanding subsection C, for any nuisance claim not otherwise prohibited by this section, nothing herein shall limit any recovery allowed under common law for physical or mental injuries that arise from such alleged nuisance and are shown by objective and documented medical evidence to have endangered life or health.
5. Any and all ordinances of any unit of local government now in effect or hereafter adopted that would make the operation of any such agricultural operation or its appurtenances a nuisance or providing for abatement thereof as a nuisance in the circumstance set forth in this section are and shall be null and void.

History. 1981, c. 384, § 3.1-22.29; 1994, c. 779; 2008, c. 860; 2018, cc. 147, 677.

Cross references.

As to exemptions from applicability of Housing Authorities Law to farm structures, see § 36-9.1 .

The 2018 amendments.

The 2018 amendments by cc. 147 and 677 are identical, and rewrote subsection A, added subsections C and D, redesignated former subsection C as E; and in subsection E, deleted the former second sentence, which read, “The provisions of this section shall not apply whenever a nuisance results from the negligent or improper operation of any such agricultural operation or any of its appurtenances.”

§ 3.2-303. Definitions.

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

“Agricultural products” means crops, livestock, and livestock products, including field crops, fruits, vegetables, horticultural specialties, cattle, sheep, hogs, goats, horses, poultry, fur-bearing animals, milk, eggs, aquaculture, commercially harvested wild fish, commercially harvested wild shellfish, and furs.

“Agriculture and forestry processing/value-added facilities” means any for-profit or nonprofit business that creates value-added agricultural or forestal products.

“Food hub” means a business or organization that actively manages the aggregation, distribution, and marketing of food products primarily from local and regional producers to strengthen such producers’ ability to satisfy wholesale, retail, and institutional demand.

“Forestal products” means saw timber, pulpwood, posts, firewood, Christmas trees, and other tree and wood products for sale or for farm use.

“Fund” means the Governor’s Agriculture and Forestry Industries Development Fund established pursuant to § 3.2-304.

“Local Grant Program” means the Local Food and Farming Infrastructure Grant Program established pursuant to § 3.2-311.

“New job” means employment of an indefinite duration, created as the direct result of the private investment, for which the firm pays the wages and standard fringe benefits for its employee, requiring a minimum of either (i) 35 hours of the employee’s time a week for the entire normal year of the firm’s operations, which “normal year” shall consist of at least 48 weeks, or (ii) 1,680 hours per year. Seasonal or temporary positions, positions created when a job function is shifted from an existing location in the Commonwealth to the location of the economic development project, positions with suppliers, and multiplier or spin-off jobs shall not qualify as new jobs. The term “new job” shall include positions with contractors provided that all requirements included within the definition of the term are met.

“Planning Grant Program” means the Agriculture and Forestry Industries Development Planning Grant Program established pursuant to § 3.2-310.

“Prevailing average wage” means that amount determined by the Virginia Employment Commission to be the average wage paid workers in the city or county of the Commonwealth where the economic development project is located. The prevailing average wage shall be determined without regard to any fringe benefits.

“Private investment” means the private investment required under this chapter.

“Value-added agricultural or forestal products” means any agricultural or forestal product that (i) has undergone a change in physical state; (ii) was produced in a manner that enhances the value of the agricultural commodity or product; (iii) is physically segregated in a manner that results in the enhancement of the value of the agricultural or forestal product; (iv) is a source of renewable energy; or (v) is aggregated and marketed as a locally produced agricultural or forestal product.

History. 2012, cc. 466, 622; 2016, c. 169; 2020, c. 1220; 2021, Sp. Sess. I, c. 185.

Editor’s note.

As enacted by Acts 2012, cc. 466 and 622, this section contains a subsection A, but no subsection B.

The 2016 amendments.

The 2016 amendment by c. 169 inserted “commercially harvested wild fish, commercially harvested wild shellfish” in the definition of “Agricultural products” in subsection A.

The 2020 amendments.

The 2020 amendment by c. 1220, effective April 22, 2020, in subsection A, added the definitions of “Fund” and “Program.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 185, effective July 1, 2021, deleted the subsection A designation; added definitions for “Food hub,” “Local Grant Program,” and “Planning Grant Program” and deleted the definition for “Program,” which read: “ ‘Program’ means the Agriculture and Forestry Industries Development Planning Grant Program established pursuant to § 3.2-310.”

§ 3.2-304. Governor’s Agriculture and Forestry Industries Development Fund established; purpose; use of funds.

1. There is hereby created in the state treasury a nonreverting fund to be known as the Governor’s Agriculture and Forestry Industries Development Fund (the Fund) to be used by the Governor to attract new and expanding agriculture and forestry processing or value-added facilities using Virginia-grown products. The Fund shall consist of any funds appropriated to it by the general appropriation act and revenue from any other source, public or private. The Fund shall be established on the books of the Comptroller, and any funds remaining in the Fund at the end of a biennium shall not revert to the general fund but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller. The Governor shall report to the Chairmen of the House Committees on Appropriations and Finance and the Senate Committee on Finance and Appropriations as funds are awarded in accordance with this chapter.
2. Funds shall be awarded from the Fund by the Governor as grants or loans to political subdivisions. The criteria for making such grants or loans shall include (i) number of jobs expected to be created, (ii) anticipated amount of private capital investment, (iii) additional state tax revenue expected to accrue to the state and affected localities as a result of the capital investment and jobs created, (iv) anticipated amount of Virginia-grown agricultural and forestal products used by the project, (v) projected impact on agricultural and forestal producers, (vi) a return on investment analysis to determine the appropriate size of any grant or loan, and (vii) an analysis of the impact on competing businesses already located in the area.
3. Funds may be used for public and private utility extension or capacity development on and off site; public and private installation, extension, or capacity development of high-speed or broadband Internet access, whether on or off site; road, rail, or other transportation access costs beyond the funding capability of existing programs; site acquisition; grading, drainage, paving, and any other activity required to prepare a site for construction; construction or build-out of publicly or privately owned buildings; training; or grants or loans to an industrial development authority, housing and redevelopment authority, or other political subdivision for purposes directly relating to any of the foregoing. However, in no case shall funds from the Fund be used, directly or indirectly, to pay or guarantee the payment for any rental, lease, license, or other contractual right to the use of any property.
4. Funds may be used for grants to political subdivisions through the Agriculture and Forestry Industries Development Planning Grant Program pursuant to § 3.2-310.
5. Moneys in the Fund shall not be used for any economic development project in which a business relocates or expands its operations in one or more Virginia localities and simultaneously closes its operations or substantially reduces the number of its employees in another Virginia locality. The Secretary of Agriculture and Forestry shall enforce this policy and for any exception thereto shall promptly provide written notice to the Chairmen of the Senate Committee on Finance and Appropriations and the House Committee on Appropriations, which notice shall include a justification for any exception to such policy.
6. The Governor shall provide grants and commitments from the Fund in an amount not to exceed the dollar amount contained in the Fund. If the Governor commits funds for years beyond the fiscal years covered under the existing appropriation act, the State Treasurer shall set aside and reserve the funds the Governor has committed, and the funds shall remain in the Fund for those future fiscal years. No grant shall be payable in the years beyond the existing appropriation act unless the funds are currently available in the Fund.

History. 2012, cc. 466, 622; 2020, c. 1220; 2021, Sp. Sess. I, c. 185.

Editor’s note.

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance” in subsection A and “Senate Committee on Finance and Appropriations and the House Committee on Appropriations” for “Senate Finance and House Appropriations Committees” in subsection E. March 10, 2021.

The 2020 amendments.

The 2020 amendment by c. 1220, effective April 22, 2020, in subsection B in the second sentence, substituted “number” for “amount” in clause (i) and deleted “anticipated” in clause (iii) at the beginning; inserted subsection D and redesignated accordingly.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 185, effective July 1, 2021, substituted “processing or value-added” for “processing/value-added” in the first sentence of subsection A.

§ 3.2-305. Guidelines and criteria for awarding grants from Fund.

The Secretary of Agriculture and Forestry, in consultation with the Virginia Economic Development Partnership, the Virginia Department of Agriculture and Consumer Services, and the Virginia Department of Forestry, shall assist the Governor in developing objective guidelines and criteria that shall be used in awarding grants from the Fund. The guidelines may include a requirement for the affected localities to provide matching funds, which may be cash or in-kind, at the discretion of the Governor. The guidelines may require that as a condition of receiving any grant incentive that is based on employment goals, a recipient company must provide copies of employer quarterly payroll reports provided to the Virginia Employment Commission to verify the employment status of any position included in the employment goal. The guidelines and criteria shall include provisions for geographic diversity, a requirement that a project purchase a minimum percentage of Virginia-grown or Virginia-produced agricultural or forestal products to which its processes are adding value, and a cap on the amount of funds to be provided to any individual project.

History. 2012, cc. 466, 622; 2013, c. 547.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 98 A, effective for the biennium ending June 30, 2022, provides: “Out of the amounts in this Item, $1,000,000 the first year and $1,000,000 the second year from the general fund shall be deposited to the Governor’s Agriculture and Forestry Industries Development Fund for the payment of grants or loans in accordance § 3.2-303 et seq., Code of Virginia. Notwithstanding any other provision of law, at the discretion of the Governor, the cap on the amount of funding that may be awarded to an individual project as provided in § 3.2-305, Code of Virginia, may be waived for qualifying projects of regional or statewide interest.”

The 2013 amendments.

The 2013 amendment by c. 547 added the third sentence.

§ 3.2-306. Contractual obligations of entities receiving grants or loans from the Fund.

1. Notwithstanding any provision in this chapter or in the guidelines established pursuant to § 3.2-305, each political subdivision that receives a grant or loan from the Fund shall enter into a contract with each business beneficiary of moneys from the Fund. A person or entity shall be a business beneficiary of funds from the Fund if grant or loan moneys awarded from the Fund by the Governor are paid to a political subdivision and (i) subsequently distributed by the political subdivision to the person or entity or (ii) used by the political subdivision for the benefit of the person or entity but never distributed to the person or entity.
2. The contract between the political subdivision and the business beneficiary shall provide in detail (i) the fair market value of all funds that the Commonwealth has committed to provide, (ii) the fair market value of all matching funds (or in-kind match) that the political subdivision has agreed to provide, (iii) how funds committed by the Commonwealth, including funds from the Fund committed by the Governor, and funds that the political subdivision has agreed to provide are to be spent, (iv) the minimum private investment to be made and the number of new jobs projected to be created by the business beneficiary, (v) the minimum percentage of Virginia-grown or produced agricultural or forestal products to be purchased by the business beneficiary, (vi) the average wage (excluding fringe benefits) projected to be paid in the new jobs, (vii) the prevailing average wage, and (viii) the formula, means, or processes agreed to be used for measuring compliance with the minimum private investment and new jobs projections, including consideration of any layoffs instituted by the business beneficiary over the course of the period covered by the contract.
3. The contract shall state the date by which the agreed-upon private investment and minimum purchases of Virginia-grown agricultural and forestal products shall be met by the business beneficiary of moneys from the Fund and may provide for the political subdivision to grant up to a 15-month extension of such date if deemed appropriate by the political subdivision subsequent to the execution of the contract. Any extension of such date granted by the political subdivision shall be in writing and promptly delivered to the business beneficiary, and the political subdivision shall simultaneously provide a copy of the extension to the Secretary of Agriculture and Forestry.
4. The contract shall provide that if the private investment and minimum purchase requirements are not met by the expiration of the date stipulated in the contract, including any extension granted by the political subdivision, the business beneficiary shall be liable to the political subdivision for repayment of a portion of the funds provided under the contract. The contract shall include a formula for purposes of determining the portion of such funds to be repaid. The formula shall, in part, be based upon the fair market value of all funds that have been provided by the Commonwealth and the political subdivision and the extent to which the business beneficiary has met the private investment and minimum purchase requirements. Any such funds repaid to the political subdivision that relate to the award from the Fund shall promptly be paid by the political subdivision to the Commonwealth by payment remitted to the State Treasurer. Upon receipt by the State Treasurer of such payment, the Comptroller shall deposit the repaid funds into the Fund.The contract shall be amended to reflect changes in the funds committed by the Commonwealth or agreed to be provided by the political subdivision.

History. 2012, cc. 466, 622.

§ 3.2-307. Copy of proposed contract to be submitted to the Attorney General.

Notwithstanding any provision in this chapter or in the guidelines established pursuant to § 3.2-305, prior to executing any such contract with a business beneficiary, the political subdivision shall provide a copy of the proposed contract to the Attorney General. The Attorney General shall review the proposed contract (i) for enforceability as to its provisions and (ii) to ensure that it is in appropriate legal form. The Attorney General shall provide any written suggestions to the political subdivision within seven days of his receipt of the copy of the contract. The Attorney General’s suggestions shall be limited to the enforceability of the contract’s provisions and the legal form of the contract.

History. 2012, cc. 466, 622.

§ 3.2-308. Disposition of award by locality.

Notwithstanding any provision in this chapter or in the guidelines established pursuant to § 3.2-305, a political subdivision shall not expend, distribute, pledge, use as security, or otherwise use any award from the Fund unless and until such contract is executed with the business beneficiary.

History. 2012, cc. 466, 622.

§ 3.2-309. Report submitted to chairmen of legislative committees.

Within the 30 days immediately following June 30 and December 30 of each year, the Governor shall provide a report to the Chairmen of the House Committees on Appropriations and Finance and the Senate Committee on Finance and Appropriations which shall include the following information regarding each grant or loan awarded from the Fund during the immediately preceding six-month period for economic development projects: the name of the company that is the business beneficiary of the grant and the type of business in which it engages; the location (county, city, or town) of the project; the amount of the grant committed from the Fund and the amount of all other funds committed by the Commonwealth from other sources and the purpose for which such grants or other funds will be used; the amount of all moneys or funds agreed to be provided by political subdivisions and the purposes for which they will be used; the number of new jobs projected to be created by the business beneficiary; the amount of investment in the project agreed to be made by the business beneficiary; the minimum purchase agreed to be made of Virginia-grown agricultural and forestal products; projected impact on agricultural and forestal producers; the timetable for the completion of the project and new jobs created; the prevailing average wage; and the average wage (excluding fringe benefits) projected to be paid in the new jobs.

History. 2012, cc. 466, 622.

Editor’s note.

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance.” March 10, 2021.

§ 3.2-310. Agriculture and Forestry Industries Development Planning Grant Program.

1. The Governor may award grants from the Fund for the Agriculture and Forestry Industries Development Planning Grant Program to encourage efforts by political subdivisions to support agriculture and forestry.
2. Any funds awarded by the Governor pursuant to this section shall be awarded as reimbursable grants to political subdivisions.
3. The Secretary of Agriculture and Forestry shall develop guidelines for the Planning Grant Program and administer the Program on behalf of the Governor. Such guidelines shall (i) include a requirement that any political subdivision applying for a grant provide matching funds and (ii) state the criteria the Governor will use in evaluating any grant application submitted pursuant to this section. Such guidelines may (a) allow contributions to a project by certain specified entities, such as a nonprofit organization or charitable foundation, to count as eligible local matching funds and (b) accept a reduced match requirement for an economically distressed locality applying for an award.

History. 2020, c. 1220; 2021, Sp. Sess. I, c. 185.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 185, effective July 1, 2021, inserted “Planning Grant” in the first sentence of subsection C.

Effective date.

Acts 2020, c. 1220, became effective April 22, 2020, by emergency clause.

§ 3.2-311. (Effective until July 1, 2022) Local Food and Farming Infrastructure Grant Program.

1. The Governor may award grants from the Fund for the Local Food and Farming Infrastructure Grant Program to encourage efforts by political subdivisions to support agriculture and forestry.
2. Any funds awarded by the Governor pursuant to this section shall be awarded as reimbursable grants of no more than $25,000 per grant to political subdivisions to support community infrastructure development projects that support local food production and sustainable agriculture.
3. The Secretary of Agriculture and Forestry shall develop guidelines for the Local Grant Program and administer the Local Grant Program on behalf of the Governor. Such guidelines shall (i) include a requirement that any political subdivision applying for a grant provide matching funds, (ii) require that grants be awarded on a competitive basis, and (iii) state the criteria the Governor will use in evaluating any grant application submitted pursuant to this section. Such guidelines shall favor projects that establish or maintain (a) farmers markets pursuant to Chapter 35 (§ 3.2-3500 et seq.); (b) food hubs; or (c) processing facilities that are primarily locally owned, including commercial kitchens, packaging and labeling facilities, animal slaughtering facilities, or other facilities, and that are primarily utilized for the processing of meats, dairy products, produce, or other products. Such guidelines shall favor projects that create infrastructure in proximity to small-scale agricultural producers.
4. The guidelines developed pursuant to subsection C may (i) allow contributions to a project by certain specified entities, such as a nonprofit organization or charitable foundation, to count as eligible local matching funds and (ii) accept a reduced match requirement for an economically distressed locality applying for an award.

History. 2021, Sp. Sess. I, c. 185.

Effective date.

This section is effective July 1, 2021.

The 2022 amendments.

The 2022 amendment by c. 287, substituted “$50,000” for “$25,000” in subsection B.

§ 3.2-311. (Effective July 1, 2022) Local Food and Farming Infrastructure Grant Program.

1. The Governor may award grants from the Fund for the Local Food and Farming Infrastructure Grant Program to encourage efforts by political subdivisions to support agriculture and forestry.
2. Any funds awarded by the Governor pursuant to this section shall be awarded as reimbursable grants of no more than $50,000 per grant to political subdivisions to support community infrastructure development projects that support local food production and sustainable agriculture.
3. The Secretary of Agriculture and Forestry shall develop guidelines for the Local Grant Program and administer the Local Grant Program on behalf of the Governor. Such guidelines shall (i) include a requirement that any political subdivision applying for a grant provide matching funds, (ii) require that grants be awarded on a competitive basis, and (iii) state the criteria the Governor will use in evaluating any grant application submitted pursuant to this section. Such guidelines shall favor projects that establish or maintain (a) farmers markets pursuant to Chapter 35 (§ 3.2-3500 et seq.); (b) food hubs; or (c) processing facilities that are primarily locally owned, including commercial kitchens, packaging and labeling facilities, animal slaughtering facilities, or other facilities, and that are primarily utilized for the processing of meats, dairy products, produce, or other products. Such guidelines shall favor projects that create infrastructure in proximity to small-scale agricultural producers.
4. The guidelines developed pursuant to subsection C may (i) allow contributions to a project by certain specified entities, such as a nonprofit organization or charitable foundation, to count as eligible local matching funds and (ii) accept a reduced match requirement for an economically distressed locality applying for an award.

History. 2021, Sp. Sess. I, c. 185; 2022, c. 287.

§ 3.2-400. Definitions.

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

“Agricultural activity” means any activity used in the production of food and fiber, including farming, feedlots, grazing livestock, poultry raising, dairy farming, and aquaculture activities.

“Agricultural stewardship plan” or “plan” means a site-specific plan for an agricultural activity to manage, through use of stewardship measures, one or more of the following: soil, water, plants, plant nutrients, pest controls, wastes, and animals.

“Board” means the Soil and Water Conservation Board.

“Complaint” means an allegation made by any person to the Commissioner that an owner’s or operator’s agricultural activity is creating or, if not changed, will create pollution and that states the location and nature of such agricultural activity.

“District” or “soil and water conservation district” means a political subdivision of the Commonwealth organized in accordance with the provisions of Chapter 5 (§ 10.1-500 et seq.) of Title 10.1.

“Informal fact-finding conference” means an informal fact-finding conference conducted in accordance with § 2.2-4019 .

“Operator” means any person who exercises managerial control over any agricultural activity.

“Owner” means any person who owns land where an agricultural activity occurs.

“Pollution” means any alteration of the physical, chemical, or biological properties of any state waters resulting from sedimentation, nutrients, or toxins.

“State waters” means all water, on the surface or in the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction.

“Stewardship measures” or “measures” means measures for controlling the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution that reflect the pollutant reduction achievable through the application of the best available nonpoint pollution control methods, technologies, processes, siting criteria, operating methods, or other alternatives.

“Stewardship measures” or “measures” includes: (i) agricultural water quality protection management measures described in the Virginia Agricultural Best Management Practices Manual; and (ii) agricultural water quality protection management measures contained in the U.S. Department of Agriculture’s Natural Resources Conservation Service Field Office Technical Guide.

History. 1996, c. 773, § 10.1-559.1 ; 2000, c. 973; 2008, c. 860.

Cross references.

As to implementation and criteria under resource management plans administered by the Department of Conservation and Recreation, see §§ 10.1-104.7 , 10.1-104.8 .

§ 3.2-401. (Effective until July 1, 2022) Exclusions from chapter.

This chapter shall not apply to any agricultural activity to which: (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title 10.1; or (ii) a permit issued by the State Water Control Board, applies.

History. 1996, c. 773, § 10.1-559.2; 2008, c. 860.

The 2022 amendments.

The 2022 amendment by c. 356 inserted “water-related”; substituted “Department of Environmental Quality” for “State Water Control Board”; and made stylistic changes.

§ 3.2-401. (Effective July 1, 2022) Exclusions from chapter.

This chapter shall not apply to any agricultural activity to which (i) Article 12 (§ 10.1-1181.1 et seq.) of Chapter 11 of Title 10.1 or (ii) a water-related permit issued by the Department of Environmental Quality applies.

History. 1996, c. 773, § 10.1-559.2; 2008, c. 860; 2022, c. 356.

§ 3.2-402. Complaint; investigation; agricultural stewardship plan.

1. After April 1, 1997, upon receiving a complaint, unless the complaint was made anonymously, the Commissioner shall request that the directors of the district where the land lies determine the validity of the information within 21 days. The Commissioner may investigate or ask the directors of the district to investigate an anonymous complaint.
2. The district chairman may, on behalf of the district, act upon or reject the Commissioner’s request. If the district declines to act, it shall within five days so advise the Commissioner, who shall determine the validity of the complaint.
3. If, after investigating a complaint, the Commissioner determines that substantial evidence exists to prove that an agricultural activity is creating or will create pollution, the Commissioner shall notify the owner or operator by registered mail, return receipt requested. If, after investigation, the Commissioner determines that the pollution is a direct result of unusual weather events or other exceptional circumstances that could not have been reasonably anticipated, or determines that the pollution is not a threat to human health, animal health, or aquatic life, water quality or recreational or other beneficial uses, the Commissioner may forego any additional action. Copies of the notice shall be sent to the district where the agricultural activity is located. The notice shall state that, within 60 days of the receipt of the notice, the owner or operator shall submit to the Commissioner and district an agricultural stewardship plan that includes stewardship measures needed to prevent or cease the pollution. The district shall review the plan and, if the plan includes such measures, the Commissioner shall approve the plan within 30 days after he receives it. Upon approving the owner’s or operator’s plan, the Commissioner shall inform the owner or operator and the complainant that a plan has been approved. The owner or operator shall begin implementing the approved agricultural stewardship plan within six months of the date that the owner or operator received the notice that the agricultural activity is creating or will create pollution.
4. The plan shall include an implementation schedule, and implementation of the plan shall be completed within a period specified by the Commissioner, based upon the seasons and other temporal considerations so that the period is that during which the possibility of success in establishment or construction of the measures required in the plan is the greatest, which shall not exceed 18 months from receipt of notice. The Commissioner may grant an extension of up to 180 days if: (i) a hardship exists; and (ii) the request for an extension was made not later than 60 days before the scheduled completion date. The Commissioner shall, within 30 days of receiving the request, inform the owner or operator whether or not an extension has been granted.
5. After implementing the approved plan according to the provisions of this chapter, the owner or operator shall maintain the stewardship measures established pursuant to the plan. The owner or operator may change the agricultural activity so long as the Commissioner is notified.
6. If the Commissioner determines that substantial evidence does not exist to prove that an agricultural activity is creating or will create pollution or that any pollution was caused by unusual weather events or other exceptional circumstances or that the pollution is not a threat to human health, animal health, or aquatic life or recreational or other beneficial uses, he shall inform the complainant and the owner or operator of his determination. Upon approving the owner’s or operator’s agricultural stewardship plan, the Commissioner shall inform the owner or operator and the complainant that a plan has been approved.

History. 1996, c. 773, § 10.1-559.3; 2000, c. 973; 2008, c. 860.

§ 3.2-403. Issuance of corrective orders.

1. If any owner or operator who has been issued a notice under § 3.2-402 fails to submit an agricultural stewardship plan, begin actively implementing the plan, complete implementation of the plan, or maintain the stewardship measures as provided in § 3.2-402, the Commissioner shall issue a corrective order to such owner or operator. The order shall require that such activity be accomplished within a stated period of time.
2. A corrective order issued pursuant to subsection A shall be issued only after an informal fact-finding conference, with reasonable notice being given to the owner or operator, or both, of the time, place, and purpose thereof, and shall become effective not less than five days after date of delivery to the last known address as provided in subsection C. The corrective order shall be suspended pending appeal by the recipient made within five days after delivery of such order to the last known address of the owner or operator.
3. The Commissioner shall mail a copy of the corrective order by certified mail, return receipt requested, sent to the last known address of the owner or operator, or by personal delivery by an agent of the Commonwealth.
4. Notwithstanding other provisions of this chapter, if the Commissioner determines that a recurring polluting condition that is the subject of an approved plan is occurring or that an emergency condition exists due to runoff from an agricultural activity that is causing or is likely to cause an imminent or substantial danger to: (i) the public health, safety, or welfare or to the health of animals, fish, or aquatic life; (ii) a public water supply; or (iii) recreational, commercial, industrial, agricultural, or other beneficial uses, the Commissioner may issue, without advance notice, informal fact-finding conference, or hearing, an emergency corrective order. Such order may direct the owner or operator of the agricultural activity, or both, to cease immediately all or part of the agricultural activity and to implement specified stewardship measures or any necessary emergency measures within a stated period of time. Following the issuance of an emergency corrective order, the Commissioner shall provide the opportunity for a hearing or an informal fact-finding conference, after reasonable notice as to the time and place thereof, to the owner or operator, for the purpose of affirming, modifying, amending, or canceling the emergency corrective order.
5. The Commissioner shall not issue a corrective order to any land owner or operator if the person is:
   1. Actively implementing the agricultural stewardship plan that has been reviewed by the district where the agricultural activity is located and approved by the Commissioner, or
   2. Actively implementing stewardship measures that have failed to prevent pollution, if the Commissioner determines that the pollution is a direct result of unusual weather events or other exceptional circumstances that could not have been reasonably anticipated.

History. 1996, c. 773, § 10.1-559.4; 2000, c. 973; 2008, c. 860.

§ 3.2-404. Right of entry; court enforcement.

1. The district or the Commissioner may enter land that is the subject of a complaint, after notice to the owner or operator, to determine whether the agricultural activity is causing or will cause pollution of state waters.
2. Upon failure of any owner or operator to allow the Commissioner entry in accordance with subsection A, to implement stewardship measures in the time specified in a corrective order, or to maintain stewardship measures in accordance with subsection E of § 3.2-402, the Commissioner may present to the circuit court of the county or city where the land is located, a petition asking the court to require the owner or operator to allow the Commissioner entry or to carry out such measures within a specified time. If the owner or operator fails to implement the stewardship measures specified in the court order, the Commissioner may enter the land involved and implement the measures. The Commissioner may recover the costs of implementing the stewardship measures from the owner or operator.

History. 1996, c. 773, § 10.1-559.5; 2000, c. 973; 2008, c. 860.

§ 3.2-405. Appeal.

Decisions of the Commissioner may be appealed by persons aggrieved to the Board and thereafter to the circuit court in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The imposition of any civil penalty shall be suspended pending such appeals.

History. 1996, c. 773, § 10.1-559.6; 2008, c. 860.

§ 3.2-406. Penalties; injunctions; enforcement actions.

1. Any person violating § 3.2-403 or 3.2-404 shall be subject to a civil penalty not to exceed $5,000 for every violation assessed by the Commissioner or Board. Each day the violation continues is a separate offense. Payments to satisfy such penalties shall be deposited in a nonreverting, special fund to be used by the Department of Conservation and Recreation to provide financial assistance to persons implementing measures specified in the Virginia Agricultural Best Management Practices Manual. No person who has been assessed a civil penalty under this section shall be eligible for such financial assistance until the violation has been corrected and the penalty paid.
2. In determining the amount of any penalty, factors to be considered shall include the willfulness of the violation, any history of noncompliance, the actions of the owner or operator in notifying, containing and cleaning up any discharge, the damage or injury to state waters or the impairment of its uses, and the nature and degree of injury to or interference with general health, welfare and property.
3. The Attorney General shall, upon request, bring an action for an injunction or other appropriate legal action on behalf of the Commissioner or Board to enforce the provisions of this chapter.

History. 1996, c. 773, § 10.1-559.7; 2008, c. 860.

§ 3.2-407. Liens.

If a person who is required to pay a civil penalty under this chapter fails to do so, the Commissioner may transmit a true copy of the order assessing such penalty to the clerk of the circuit court of any county or city wherein it is ascertained that the person owing such penalty has any estate; and the clerk to whom such copy is transmitted shall record it, as a judgment is required by law to be recorded, and shall index it in the name of the Commonwealth as well as in the name of the person owing the civil penalty, and thereupon there shall be a lien in favor of the Commonwealth on the property within such locality of the person owing the civil penalty in the amount of the civil penalty. The Commissioner and Board may collect civil penalties that are owed in the same manner as provided by law in respect to judgment of a circuit court.

History. 1996, c. 773, § 10.1-559.8; 2008, c. 860.

§ 3.2-408. Guidelines to be published by Commissioner; report.

1. In consultation with the districts, the Department of Conservation and Recreation, and interested persons, the Commissioner shall develop guidelines for the implementation of this chapter. These guidelines shall address, among other things, the conduct of investigations, sources of assistance for owners and operators, and intergovernmental cooperation. Within 90 days of the effective date of this section, the Commissioner shall submit the proposed guidelines to the Registrar of Regulations for publication in the Virginia Register of Regulations. At least 30 days shall be provided for public comment after the publication of the proposed guidelines. After the close of the public comment period, the Commissioner shall consider the comments that he has received and may incorporate any changes into the guidelines that he deems appropriate. He shall develop a written summary and analysis of the comments, which shall be made available to the public upon request. Thereafter, the Commissioner shall submit final guidelines for publication in the Register. The guidelines shall become effective on April 1, 1997. The Commissioner may alter the guidelines periodically after his proposed changes have been published in the Register and a public comment period has been provided.
2. The Commissioner shall compile a report by August 31 annually listing the number of complaints received, the nature of each complaint, the actions taken in resolution of each complaint, and any penalties that may have been assessed. The Commissioner shall have the discretion to exclude and keep confidential specific information regarding ongoing investigations. The Commissioner shall: (i) provide the report to the Board, the Department of Conservation and Recreation, and to every district; (ii) publish notice in the Virginia Register that the report is available; and (iii) make the report available to the public upon request.

History. 1996, c. 773, § 10.1-559.9; 2008, c. 860.

§ 3.2-409. Ordinances.

1. Any locality may adopt an ordinance creating a complaint, investigation, and agricultural stewardship plan development program. Ordinances adopted hereunder may contain only provisions that parallel §§ 3.2-401 and 3.2-402. No such ordinance shall provide for the imposition of civil or criminal sanctions against an operator or owner who fails to implement a plan. If an owner or operator fails to implement a plan, the local governing body shall submit a complaint to the Commissioner as provided in § 3.2-402.
2. This section shall not apply to any ordinance (i) in existence on July 1, 1996 or (ii) adopted pursuant to the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.).

History. 1996, c. 773, § 10.1-559.10; 2008, c. 860; 2013, cc. 756, 793.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and substituted “(§ 62.1-44.15:67 et seq.)” for “(§ 10.1-2100 et seq.)” and made stylistic changes in subsection B.

§ 3.2-410. Construction of chapter.

Nothing in this chapter shall be construed as duplicative of regulations governing agricultural practices under the Chesapeake Bay Preservation Act (§ 62.1-44.15:67 et seq.).

History. 1996, c. 773, § 10.1-559.11; 2008, c. 860; 2013, cc. 756, 793.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and added “(§ 62.1-44.15:67 et seq.)” at the end.

§ 3.2-500. Definitions.

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

“Farmer” means any person who derives at least 75 percent of his gross income from a farming operation in the Commonwealth as reported on his federal income tax forms the previous year, or a farmer who receives or is eligible to receive a federal loan and who owns or leases land that would be eligible for special tax assessments pursuant to Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1. It shall not be necessary for any locality to adopt an ordinance pursuant to § 58.1-3231 in order to effectuate the provisions of this section relating to special tax assessments.

“Major disaster” means any hurricane, flood, or drought that would warrant a disaster declaration request by the Governor pursuant to the provisions of Section 301 of Public Law 93-288, 42 U.S.C. § 5141.

History. 1978, c. 837, § 3.1-22.17; 2008, c. 860.

§ 3.2-501. Declaration by Governor.

The provisions of this chapter shall be effective from the time that the Governor makes a request pursuant to Section 301 of Public Law 93-288, 42 U.S.C. § 5141, until the Governor declares that the effects of the disaster have been abated.

History. 1978, c. 837, § 3.1-22.16; 2008, c. 860.

§ 3.2-502. Administration.

The Commissioner shall establish administrative procedures necessary to give effect to this chapter including the adoption of regulations.

History. 1978, c. 837, § 3.1-22.21; 2008, c. 860.

§ 3.2-503. Repealed by Acts 2016, c. 588, cl. 10, effective October 1, 2016.

Cross references.

For similar provisions effective October 1, 2016, see subsections C, D, and E of § 23.1-2610 . For transition provisions related to the recodification of Title 23, see § 23.1-100 .

Editor’s note.

Former § 3.2-503, pertaining to Duties of Extension Division of Virginia Polytechnic Institute and State University was derived from 1978, c. 837, § 3.1-22.15; 2008, c. 860.

§ 3.2-504. Loans.

The Governor or his designee may approve a loan to any farmer who has suffered the effects of a major disaster upon the recommendation of the Commissioner and subject to the following terms and conditions:

1. The assistance provided for in this section shall not be extended unless the farmer has applied for and received approval for a loan exceeding the amount requested pursuant hereto from any federal agency providing disaster relief loans. Upon approval of a loan by such federal agency, the Governor or his designee may approve a loan not to exceed $10,000.
2. The loan shall be available only for operating expenses for the farming operation.
3. No interest shall be charged for the loan.
4. Repayment shall be made within one year or upon receipt of loan funds from any federal agency providing disaster relief, whichever is sooner. The Department may require the farmer to provide sufficient security or to make provision for direct payment from federal lending agencies of the entire amount of the loan made pursuant to this chapter as a condition of granting the loan.
5. A maximum of $10,000 may be loaned any one farmer. The Governor at his discretion may reduce or increase the maximum amount of the loan.
6. The availability of loans provided for in this section shall be based on and subject to the moneys accumulated in the Farmers Major Disaster Fund established in § 3.2-506.

History. 1978, c. 837, § 3.1-22.18; 2008, c. 860.

§ 3.2-505. Emergency services.

1. The Commissioner may develop and initiate programs of general relief to farmers affected by major disasters and to expend moneys from the Farmers Major Disaster Fund in order to implement such programs. Programs created pursuant hereto shall include but not be limited to the following:
   1. Programs to assist farmers in their feed needs including the supplying of feed at cost.
   2. Programs to provide supplemental manpower to those state and federal agencies involved in relief efforts to aid farmers.
2. Any locality may develop and initiate a grant program to supply emergency financial assistance to farmers in the locality to offset a portion of any operating losses resulting from a major disaster as declared by the Governor pursuant to § 44-146.17 .

History. 1978, c. 837, § 3.1-22.19; 2000, c. 16; 2008, c. 860.

§ 3.2-506. Farmers Major Disaster Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Farmers Major Disaster Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys allocated by the Governor from appropriations made to the Governor for disaster planning and operations pursuant to the declaration of the state disaster under Chapter 3.2 (§ 44-146.13 et seq.) of Title 44 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 emergency services programs pursuant to § 3.2-505 and all loans made pursuant to 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.

History. 1978, c. 837, § 3.1-22.20; 2008, c. 860.

§ 3.2-600. Commissioner designated to apply for and receive trust assets held by United States.

The Commissioner is designated as the Commonwealth official to make application to and receive from the U.S. Department of Agriculture, or any other proper federal official, pursuant and subject to the provisions of the federal Rural Rehabilitation Corporation Trust Liquidation Act (40 U.S.C. § 440 et seq.), the trust assets, either funds or property, held by the United States as trustee on behalf of the Virginia Rural Rehabilitation Corporation.

History. Code 1950, § 3-27.1; 1952, c. 118; 1966, c. 702, § 3.1-23; 2008, c. 860.

§ 3.2-601. Agreements of Commissioner with U.S. Department of Agriculture.

The Commissioner, with the advice of the Board, may enter into agreements with the U.S. Department of Agriculture pursuant to § 2 (f) of the federal Rural Rehabilitation Corporation Trust Liquidation Act (40 U.S.C. § 440 et seq.), upon such terms and conditions and for such periods of time as may be mutually agreeable, authorizing the U.S. Department of Agriculture to accept, administer, expend, and use in the Commonwealth all or any part of such trust assets for carrying out the purposes of Titles I and II of the Bankhead-Jones Farm Tenant Act, in accordance with the applicable provisions of Title IV thereof, as now or hereafter amended, and may do any and all things necessary to effectuate and carry out the purposes of said agreements.

History. Code 1950, § 3-27.2; 1952, c. 118; 1966, c. 702, § 3.1-24; 2008, c. 860.

§ 3.2-602. Virginia Farm Loan Revolving Account.

Notwithstanding any other provisions of law, funds and the proceeds of the trust assets that are not authorized to be administered by the U.S. Department of Agriculture under the provisions of § 3.2-601 shall be paid to and received by the Commissioner and by him paid into the state treasury for credit to an account to be known as the “Virginia Farm Loan Revolving Account.” The entire amount so received, together with any moneys appropriated for such purposes, is hereby appropriated out of the Virginia Farm Loan Revolving Account for expenditure by the Commissioner for such of the rural rehabilitation purposes permissible under the charter of the now dissolved Virginia Rural Rehabilitation Corporation, as may from time to time be agreed upon by the Commissioner and the U.S. Department of Agriculture, subject to the applicable provisions of the federal Rural Rehabilitation Corporation Trust Liquidation Act (40 U.S.C. § 440 et seq.), or for the purposes of § 3.2-601. Such expenditure shall be paid by the State Treasurer on warrants of the Comptroller issued on vouchers signed by the Commissioner.

History. Code 1950, § 3-27.3; 1952, c. 118; 1966, c. 702, § 3.1-25; 2008, c. 860.

§ 3.2-603. Further powers of Commissioner; delegation to Secretary of Agriculture.

The Commissioner may:

1. Collect, compromise, adjust, or cancel claims and obligations arising out of or administered under this chapter or under any mortgage, lease, contract, or agreement entered into or administered pursuant to this chapter and, if in his judgment necessary and advisable, pursue the same to final collection in any appropriate court;
2. Bid for and purchase at any execution, foreclosure, or other sale, or otherwise to acquire property where the Commissioner has a lien by reason of judgment or execution, or that is pledged, mortgaged, conveyed, or otherwise secures any loan or other indebtedness owing to or acquired by the Commissioner under this chapter; and
3. Accept title to any property so purchased or acquired; to operate or lease such property for such period as may be deemed necessary to protect the investment therein; and to sell or otherwise dispose of such property in a manner consistent with the provisions of this chapter.The authority herein contained may be delegated to the U.S. Department of Agriculture with respect to funds or assets authorized to be administered and used by him under agreements entered into pursuant to § 3.2-601.

History. Code 1950, § 3-27.4; 1952, c. 118; 1966, c. 702, § 3.1-26; 2008, c. 860.

§ 3.2-604. Liability of the U.S. Department of Agriculture.

The United States and the Secretary of Agriculture thereof shall be held free from liability by virtue of the transfer of assets to the Commissioner pursuant to this chapter.

History. Code 1950, § 3-27.5; 1952, c. 118; 1966, c. 702, § 3.1-27; 2008, c. 860.

§ 3.2-700. Definitions.

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

“Certificate” means a document issued or authorized by the Commissioner indicating that a regulated article is not contaminated with a pest.

“Host” means any plant or plant product upon which a pest is dependent for completion of any portion of its life cycle.

“Infested” means actually infested or infected with a pest or so exposed to infestation that it would be reasonable to believe that an infestation exists.

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

“Permit” means a document issued or authorized by the Commissioner to provide for the movement of regulated articles to restricted destinations for limited handling, utilization, or processing.

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

“Pest” means an insect, disease, parasitic plant, or other organism of any character whatever, in any living stage, vertebrate or invertebrate, causing or capable of causing injury or damage to any plant or part thereof or any processed, manufactured, or other product of plants, or otherwise creating a public nuisance.

“Regulated article” means any article of any character carrying or capable of carrying the pest against which the quarantine is directed.

History. 1975, c. 29, § 3.1-188.20; 1980, c. 291; 2008, c. 860.

Cross references.

As to powers of local service districts to adopt ordinances to control insect infestations, see § 15.2-2403 .

§ 3.2-701. Administration; regulations.

The Commissioner shall protect the agricultural, horticultural, and other interests of the Commonwealth from plant pests and supervise and direct the execution of this article and regulations adopted hereunder.

History. 1975, c. 29, § 3.1-188.21; 1980, c. 291; 2000, c. 730; 2008, c. 860.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, §§ 8, 9.

§ 3.2-702. Abundance surveys; eradication or suppression of pests.

The Commissioner shall direct abundance surveys for plant pests and may carry out operations or measures to locate, suppress, control, eradicate, prevent, or retard the spread of pests. When the Commissioner determines that a new or dangerous or highly injurious plant pest exists within the Commonwealth or that an established pest requires control and the nature of the pest dictates immediate action, he may proceed with eradication or suppression. Provided further, that whenever the Commissioner intends to go upon any property for the purpose of eradicating or suppressing pests, he shall before entering upon any such property, give a written notice to the owner or occupant thereof at least 24 hours prior to such entry, setting forth in detail the purpose or purposes for which such entry shall be made.

In the event the Commissioner determines a plant pest does not require immediate action, he shall report his findings, including the nature of the pest and method of proposed treatment, to the Board in writing and to the property owners or persons in charge of the property concerned by printing a copy thereof, at least once, in at least one newspaper of general circulation in the locality concerned. In case of objection to the action proposed, an appeal shall lie to the Board. Such appeal shall be taken within seven days from the issue of the notice and shall act as a stay of proceedings insofar as the property of the person noting the appeal is concerned until it is heard and decided.

History. 1975, c. 29, § 3.1-188.22; 1980, c. 291; 2008, c. 860.

§ 3.2-703. Authority to quarantine.

The Board may quarantine the Commonwealth or any portion thereof when it determines that such action is necessary to prevent or retard the spread of a pest into, within, or from the Commonwealth. Before a quarantine is adopted, the Board shall, after due public notice, hold a public hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.), at which hearing any interested party may appear and be heard either in person or by attorney. Notwithstanding the provisions of § 2.2-4002 or any other law to the contrary, the Commissioner may impose a temporary quarantine for a period not to exceed 90 days. A public hearing, as provided herein, shall be held if it appears that a quarantine for more than the 90-day period will be necessary to prevent or retard the spread of the pest. The Commissioner shall give notice of the establishment of the quarantine in a newspaper having general circulation in the area affected by the quarantine. The Commissioner may limit the application of the temporary or permanent quarantine to the infested area and appropriate environs, to be known as the regulated areas, and may without further hearing extend or reduce the regulated area upon publication of a notice to that effect in a newspaper having general circulation in the area affected by the quarantine or by direct written notice to those concerned. Any temporary quarantine imposed by the Commissioner or any extensions or reductions in the regulated areas pursuant to this section shall be reviewed by the Board at its next regularly scheduled meeting, such review by the Board shall be made within 90 days of the Commissioner’s action.

Following establishment of a quarantine, no person shall move any regulated article described in the quarantine or move the pest against which the quarantine is established, within, from, into, or through the Commonwealth contrary to regulations.

The regulations may restrict the movement of the pest and any regulated articles from the regulated area in the Commonwealth into or through other parts of the Commonwealth or other states and from the regulated area in other states into or through the Commonwealth and shall impose such inspection, disinfection, certification, or permit and other requirements as the Commissioner deems necessary to effectuate the purposes of this article. The Commissioner may issue administrative instructions relating to the enforcement of regulations including acceptable certification procedures, regulated articles, and exemptions.

History. 1975, c. 29, § 3.1-188.23; 1980, c. 291; 2008, c. 860.

§ 3.2-704. Quarantine against regulated articles in other states.

When the Board has good reason to believe in the existence of infested regulated articles in localities in other states, territories, or countries, or that conditions exist that, in the judgment of the Board, render the importation of such regulated articles from such localities a menace to the health of the Commonwealth, the Board shall, by proclamation, prohibit the importation of any regulated article from any locality of other states, territories, or countries, into the Commonwealth.

History. 1975, c. 29, § 3.1-188.24; 2008, c. 860.

§ 3.2-705. Authority for abatement and other emergency measures; compensation to property owners.

Whenever the Commissioner finds any article that is infested or reasonably believed to be infested or a host or pest exists on any property or is in transit in the Commonwealth, he may require full information as to origin, number and destination of same and, upon giving notice to the owner or his agent in possession thereof, seize, quarantine, treat, or otherwise dispose of such pest, host, or article in such manner as the Commissioner deems necessary to suppress, control, eradicate, prevent, or retard the spread of a pest; or the Commissioner may order such owner or agent to so treat or otherwise dispose of the pest, host, or article. The owner of any property destroyed or ordered to be treated or otherwise disposed of under this section may, in an action against the Commonwealth in the appropriate court, recover just compensation for any property so destroyed or the reasonable costs of disposal of any property so ordered if he establishes that the property was not a pest, or a host, or an infested article.

History. 1975, c. 29, § 3.1-188.25; 1980, c. 291; 2008, c. 860.

§ 3.2-706. Authority for inspections; warrants.

To effectuate the purpose of this article, the Commissioner may, with a warrant or with the consent of the owner, make reasonable inspections of any property in the Commonwealth and may, without a warrant, stop and inspect, in a reasonable manner, any means of conveyance moving within the Commonwealth, upon probable cause that it contains or carries any pest, host, or other regulated article subject to this article, and may make any other reasonable inspection of any property or means of conveyance for which, under the Constitution of the United States and the Constitution of the Commonwealth, no warrant is required.

In accordance with § 19.2-52 , the appropriate persons have authority to issue warrants for such inspections upon a showing by the Commissioner that there is probable cause to believe that there exists in or on the property to be inspected a pest, host, or other regulated article subject to this article.

History. 1975, c. 29, § 3.1-188.26; 1980, c. 291; 2008, c. 860.

§ 3.2-707. Cooperation with other agencies and private organizations.

When the Commissioner deems it necessary to suppress, control, eradicate, prevent, or retard the spread of any pest, he may cooperate with:

1. Any agency of the federal government, and may expend state funds on federal lands;
2. Any agency of an adjacent state if the use of funds appropriated to carry out this article for operations in an adjacent are approved in advance by the Governor or his designee;
3. Any agency of a local government within the Commonwealth; and
4. Any public and private organizations within the Commonwealth.

History. 1975, c. 29, § 3.1-188.27; 1990, c. 370; 2000, c. 730; 2008, c. 860.

§ 3.2-708. Cooperative Suppression Program Fund established.

The Cooperative Suppression Program Fund is hereby established as a special fund on the books of the State Comptroller, and all moneys credited to such fund are hereby appropriated for the purpose set forth in the Department’s Gypsy Moth Cooperative Suppression Program Guidelines and shall be used exclusively for the administration of the Cooperative Suppression Program. Moneys for such fund may be derived from appropriations from the general fund of the state treasury; grants of private or government money designated for specified activities pursuant to the Suppression Program; fees for services rendered pursuant to the Suppression Program; payment for products, equipment, or material or any other thing supplied by the Commissioner; payment for educational publications, materials or supplies provided by the Commissioner, and grants, bequests and donations. All funds collected for, appropriated, or received by the Commissioner shall be paid into the state treasury to the credit of the Gypsy Moth Cooperative Suppression Program Fund. No part of such fund shall revert to the general fund of the state treasury.

History. 1990, c. 370, § 3.1-188.27:1; 2008, c. 860.

§ 3.2-709. Authority for compensation to growers in infested areas.

The Commissioner, when he determines that it is necessary to fulfill the objectives of this article, may authorize the payment of reasonable compensation to growers in infested areas for eliminating or not planting host crops, or otherwise controlling the target pest, pursuant to instructions issued by the Commissioner or for losses or expenses resulting from the destruction of any host or regulated articles. No payment shall be authorized for the destruction of regulated articles moved in violation of any regulation or any hosts planted contrary to instructions issued by the Commissioner.

History. 1975, c. 29, § 3.1-188.28; 2008, c. 860.

§ 3.2-710. Penalties.

1. Any person who violates any of the provisions of this article, or who alters, forges, or counterfeits, or uses without authority any certificate or permit or other document provided for in this article or in the regulations of the Board adopted hereunder is guilty of a Class 1 misdemeanor.
2. Any person who has knowingly moved any regulated article into the Commonwealth from any quarantined area of any other state, which regulated article has not been treated or handled under provisions of the quarantine and regulations in effect at the point of origin, is guilty of a Class 1 misdemeanor.

History. 1975, c. 29, § 3.1-188.29; 1980, c. 291; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-711. Costs of administration; reimbursements to Commonwealth.

Costs of administering this law shall be borne by the Commonwealth. The costs for services, products, or articles that the Commissioner determines are beyond the reasonable scope of the law, shall be paid by the persons affected to the State Treasurer. The Commissioner shall cause all reimbursements to be promptly credited to the State fund from which expended, regardless of the date the costs were incurred or collected.

History. 1975, c. 29, § 3.1-188.30; 2008, c. 860.

§ 3.2-712. Permit required to sell and transport plant pests.

No person shall sell, barter, offer for sale, move, transport, deliver, ship, or offer for shipment into or within the Commonwealth any plant pests in any living stage without first obtaining a permit from the Commissioner. Such permit shall be issued only after it has been determined that the plant pests are not injurious, are generally present already, or are for scientific purposes subject to specified safeguards.

History. Code 1950, § 3-178.14; 1964, c. 476; 1966, c. 702, § 3.1-188.31:1; 1980, c. 291; 2008, c. 860.

Cross references.

For similar provisions, see § 3.2-3802.

§ 3.2-713. 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.).

History. 1980, c. 291, § 3.1-188.31:2; 2008, c. 860.

§§ 3.2-714 through 3.2-731. Repealed by Acts 2015, c. 373, cl. 1.

Editor’s note.

Former Article 2 (§§ 3.2-714 through 3.2-731 ), which enacted the Pest Control Compact, derived from 1970, c. 174, §§ 3.1-188.1 through 3.1-188.19; 2008, c. 860.

§ 3.2-800. Definitions.

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

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

“Infested” means the establishment of a noxious weed or exposure to such weed, which would be reasonable cause to believe that establishment could occur.

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

“Noxious weed” means any living plant, or part thereof, declared by the Board through regulations under this chapter to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health, the environment, or the economy, except when in-state production of such living plant, or part thereof, is commercially viable or such living plant is commercially propagated in Virginia.

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

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

“Quarantine” means a legal declaration by the Board that specifies: (i) the noxious weed; (ii) the articles to be regulated; (iii) conditions governing movement; and (iv) exemptions.

“Regulated article” means any article of any character as described in this chapter or in the quarantine carrying or capable of carrying a noxious weed against which this chapter or the quarantine is directed.

History. 1970, c. 175, § 3.1-296.12; 1996, c. 266; 2008, c. 860; 2016, c. 171.

Cross references.

As to authority of local governments to enact ordinances for the control of noxious weeds, and authority of the Department to provide financial and technical assistance to such governments, see § 15.2-902 .

The 2016 amendments.

The 2016 amendment by c. 171, in the definition of “Noxious weed,” deleted “not widely disseminated” following “any living plant” and inserted “the environment,” and “except when in-state production of such living plant, or part thereof, is commercially viable or such living plant is commercially propagated in Virginia.”

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, § 8.

§ 3.2-801. Powers and duties of Commissioner.

The Commissioner shall exercise or perform the powers and duties imposed upon him by this chapter. The Commissioner shall make surveys for noxious weeds and when the Commissioner determines that an infestation exists within the Commonwealth, he may request the Board to declare the weed to be noxious under this chapter and the Board shall proceed as specified in § 3.2-802.

The Commissioner in coordination with the Department of Wildlife Resources shall develop a plan for the identification and control of noxious weeds in the surface waters and lakes of the Commonwealth.

The Commissioner may cooperate with any person or any agency of the federal government in carrying out the provisions of this chapter.

Expenses incurred on property owned or controlled by the federal government shall be reimbursed and refunded to the appropriation from which they were expended.

History. 1970, c. 175, § 3.1-296.13; 1996, c. 266; 2008, c. 860; 2015, cc. 158, 180; 2020, c. 958.

The 2015 amendments.

The 2015 amendments by cc. 158 and 180 are identical, and deleted the fifth paragraph, which read “The Commissioner may, upon request, cooperate with federal, other state agencies, or political subdivisions in the enforcement of the narcotics laws to the extent of preventing the spread of and destroying marijuana or hemp, Cannabis species, or other plants that produce drugs that have been condemned for destruction under the narcotics laws, and the expenses incurred shall be reimbursed and shall be refunded to the appropriation from which they were expended. Such drug producing plants are hereby declared noxious and subject to all provisions of this chapter pertaining to eradication and spread subject to the above conditions.”

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the second paragraph.

§ 3.2-802. Powers and duties of Board; quarantine.

1. The Board shall establish by regulation, after a public hearing, those weeds deemed to be noxious weeds not otherwise so declared by the terms of this chapter. Prior to designating a living plant or part thereof as a noxious weed, the Board shall review the recommendations of an advisory committee established by the Commissioner to conduct a scientific risk assessment of the proposed plant. The assessment shall include the degree to which the plant is detrimental to crops; surface waters, including lakes; other desirable plants; livestock; land or other property; public health; the environment; and the economy. The advisory committee shall also include in its recommendations to the Board an analysis of the current and potential in-state commercial viability of the specific plant species and the economic impact on industries affected by the designation of the plant as a noxious weed.
2. The Board may establish a statewide quarantine and adopt regulations pertaining to regulated articles and conditions governing movement, under which the Commissioner shall proceed to eradicate or suppress and prevent the dissemination of noxious weeds in the Commonwealth, and shall adopt other regulations as are necessary to carry out the purpose of this chapter. The Board may adopt regulations governing the movement of regulated articles entering the Commonwealth from without. Following the establishment of a quarantine, no person shall move any noxious weed or any regulated article described in the quarantine from any regulated area without a valid permit or certificate.Subsequent to the declaration of a quarantine by the Board, the Commissioner shall limit the application of the regulations pertinent to such quarantine to the infested portion of the Commonwealth and appropriate environs, which would be known as the regulated area and may, without further hearing, extend the regulated area to include additional portions of the Commonwealth upon publication of a notice to that effect in a newspaper distributed in the extended area or by direct written notice to those concerned.

History. 1970, c. 175, § 3.1-296.14; 2008, c. 860; 2016, c. 171.

The 2016 amendments.

The 2016 amendment by c. 171 inserted the subsection A and B designations and added the second through fourth sentences in subsection A.

§ 3.2-803. Cost of controlling noxious weeds.

The cost of controlling or eradicating noxious weeds on all property owned or controlled by a State department or political subdivision thereof or control authority, agency, commission, or board, including highways, roadways, streets, alleys, and rights-of-way, shall be paid by the entity out of funds appropriated for its use. When it is not feasible for the entity to conduct the control program, the Commissioner may proceed with the control and the entity shall reimburse the cost and these moneys shall be refunded to the appropriation from which they were expended.

History. 1970, c. 175, § 3.1-296.15; 2008, c. 860.

§ 3.2-804. Prohibited acts; noxious weeds.

No person shall violate any provisions of this chapter or any regulation adopted hereunder. No person shall move, transport, deliver, ship, or offer for shipment into or within the Commonwealth any noxious weed, or part thereof, without first obtaining a permit from the Commissioner. Such permit shall be issued only after it has been determined that the noxious weed is generally present already or it is for scientific purposes subject to prescribed safeguards.

History. 1970, c. 175, § 3.1-296.16; 2008, c. 860.

§ 3.2-805. Authority to stop sale or delivery of noxious weeds.

The Commissioner, in order to prevent the introduction or dissemination of noxious weeds, may stop delivery, stop sale, seize, destroy, treat, or order returned to the point of origin, at the owner’s expense, any noxious weed, article, or substance whatsoever, if transported or moved within the Commonwealth, or if existing on any premises, or brought into the Commonwealth from any place outside thereof, if such is found by him to be infested with any noxious weed subject to the provisions of this chapter.

History. 1970, c. 175, § 3.1-296.17; 2008, c. 860.

§ 3.2-806. Access to plants or plant products; state and local police cooperation upon request.

The Commissioner shall have access to plants or plant products or any other article or substance suspected of being infested with a noxious weed for inspection and shall be provided with full information as to origin and destination of same by the person in possession of any plants or other articles.

State and local police, upon request in specific instances, shall cooperate with the Commissioner in the enforcement of this chapter. This chapter shall supersede any ordinances in the Commonwealth insofar as carrying out its intent.

History. 1970, c. 175, § 3.1-296.19; 2008, c. 860.

§ 3.2-807. Inspection of premises and conveyances.

To effectuate the purpose of this chapter, the Commissioner may make reasonable inspections of any premises in the Commonwealth and any property therein or thereon and may stop and inspect in a reasonable manner any means of conveyance moving within the Commonwealth when there is probable cause to believe it maintains or carries any noxious weed subject to the provisions of this chapter.

History. 1970, c. 175, § 3.1-296.20; 2008, c. 860.

§ 3.2-808. Injunctions.

The Commissioner or landowner affected may apply to any appropriate court for an injunction and such court may grant a temporary or permanent injunction restraining a person from violating or continuing the violation of any provision of this chapter, or the Commissioner from the enforcement of any provision of this chapter, when the court determines that the testimony and evidence presented warrants such action, without reference to adequacy of any remedy existing at law.

History. 1970, c. 175, § 3.1-296.21; 2008, c. 860.

§ 3.2-809. Penalty for violation.

Any person who fails to comply with the provisions of this chapter or the regulations adopted hereunder is guilty of a Class 1 misdemeanor.

History. 1970, c. 175, § 3.1-296.18; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-900. Definitions.

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

“Nuisance birds” means blackbirds, red-winged blackbirds, grackles, cowbirds, pigeons, and starlings, or any other species so declared by regulations of the Board when causing or about to cause economic losses in the Commonwealth; becoming detrimental to the public health and welfare; defacing or defiling public or private property or otherwise creating a public nuisance.

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

History. 1968, c. 64, § 3.1-1012; 2008, c. 860.

§ 3.2-901. Powers and duties of Commissioner.

1. The Commissioner shall conduct investigations and surveys to determine economic losses or public nuisances caused by nuisance birds and may develop a plan of action when he has determined that they are causing or about to cause economic losses in the Commonwealth, are detrimental to the public health and welfare, or otherwise create a public nuisance.
2. The Commissioner may provide technical assistance to persons for the suppression of any nuisance birds when it has been determined that they are defacing or defiling public or private property.
3. The Commissioner may appoint an advisory committee to evaluate facts in any particular situation and to make recommendations to him on the course of action. Plan of action programs shall be selected and executed so as to protect human life, other birds, and wildlife.
4. The Commissioner may upon receipt of a complaint of a nuisance bird problem from an individual property owner, tenant, or sharecropper, make an investigation and determine the degree of assistance required. If after such investigation the Commissioner finds suppression necessary, he shall recommend acceptable means and methods.
5. The Commissioner may provide assistance and cooperate with federal agencies, other state agencies, other states, political subdivisions of the Commonwealth, public and private agencies, organizations, institutions, and persons in the exercise of the duties imposed upon him by this chapter. Any plan of action conducted by the Commissioner under the provisions of this chapter shall be consistent with other applicable state and federal laws. Money accepted from any cooperator or person shall be deposited to a special nuisance bird fund to be expended in the enforcement of this chapter.

History. 1968, c. 64, §§ 3.1-1013, 3.1-1014, 3.1-1015, 3.1-1019; 2008, c. 860.

§ 3.2-1000. Definitions.

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

“Candidate species” means those species formally recommended by the Director of the Department of Conservation and Recreation or other reliable data sources in writing to and accepted by the Commissioner for presentation to the Board for listing under this chapter.

“Endangered species” means any species or variety of plant life or insect life determined by the Board to be in danger of extinction throughout all or a significant part of its range other than a species determined by the Commissioner not to be in the best interest of the welfare of man.

“Insect” or “insect life” means any species of the class Insecta.

“Plant” or “plant life” means any member of the plant kingdom, including spores, leaves, stems, branches, flowers, seeds, roots, and other parts or products thereof.

“Proposed species” means any candidate species authorized by the Board for consideration for listing as threatened or endangered under the provisions of this chapter.

“Species” includes any species or variety of plant life or insects.

“Take” means, in reference to plants and insects, to collect, pick, cut, or dig up for the purpose of resale.

“Threatened species” means any species determined by the Board to be likely to become an endangered species within the foreseeable future throughout all or a significant portion of its native range.

History. 1979, c. 372, § 3.1-1021; 1985, c. 326; 1989, c. 553; 1990, c. 369; 2008, c. 860.

§ 3.2-1001. Powers and duties of Commissioner.

For the purpose of effectively administering this chapter, the Commissioner may:

1. Establish programs as are deemed necessary for the management of threatened or endangered species.
2. Accept funds for a special account or other gifts or grants from any source for use in the furtherance of this chapter. Funds collected for services on articles determined by the Commissioner to be beyond the scope of this chapter shall revert to the fund from which expended.
3. Enter into reciprocal agreements with responsible officers of other states under which any part of this chapter would benefit.
4. Issue a permit authorizing the removal, taking, or destruction of threatened or endangered species on the state list upon good cause shown and where necessary to alleviate damage to property, the impact on progressive development, or protect human health, provided that such action does not violate federal laws or regulations.
5. Stop sale, seize, or return to point of origin at the owner’s expense, any threatened or endangered species or part thereof if the Commissioner determines the owner has violated any of the provisions of this chapter or the regulations adopted hereunder. Any threatened or endangered species or part thereof seized may be disposed of at the discretion of the Commissioner.
6. Seek, in those situations where permission to enter property is denied by the owner or occupant, an administrative inspection warrant signed by any judge of any circuit court whose territorial jurisdiction encompasses the property to be inspected, authorizing the Commissioner to make inspections or develop other biological data for the proper management of any threatened or endangered species. The issuance of an administrative inspection warrant pursuant hereto shall conform, insofar as is practicable, to the requirements and guidelines set forth in Chapter 24 (§ 19.2-393 et seq.) of Title 19.2 relating to the issuance of inspection warrants in connection with the manufacturing or emitting of a toxic substance.

History. 1979, c. 372, §§ 3.1-1022, 3.1-1024; 1985, c. 326; 2008, c. 860.

§ 3.2-1002. Listing of threatened and endangered species; powers of Board; further powers of Commissioner.

1. The Board may adopt regulations including the listing of threatened or endangered species, their taking, quotas, seasons, buying, selling, possessing, monitoring of movement, investigating, protecting, or any other need in furtherance of the purposes of this chapter.
2. The Commissioner may conduct investigations of species of plants and insects to develop information relating to the population, distribution, habitat needs, limiting factors, and other biological and ecological data in order to determine management measures necessary to assure their continued ability to sustain themselves successfully. As a result of this investigation and recommendations received regarding candidate species from the Director of the Department of Conservation and Recreation and from other reliable data, the Board shall approve proposed species to be added to or deleted from the list of threatened species or the list of endangered species, or to be transferred from one list to the other.

History. 1979, c. 372, § 3.1-1025; 1985, c. 326; 1989, c. 553; 1990, c. 369; 2008, c. 860.

§ 3.2-1003. Threatened and endangered species; prohibitions.

1. It shall be unlawful for any person to dig, take, cut, process, or otherwise collect, remove, transport, possess, sell, offer for sale, or give away any species native to or occurring in the wild in the Commonwealth that are listed in this chapter or the regulations adopted hereunder as threatened or endangered, other than from such person’s own land, except in accordance with the provisions of this chapter or the regulations adopted hereunder.
2. The Commissioner may require any person possessing endangered species or parts thereof to present such species or parts thereof for inspection and to give full information as to their origin and destination.

History. 1979, c. 372, §§ 3.1-1023, 3.1-1024; 2008, c. 860.

§ 3.2-1004. When Commissioner may permit taking of threatened or endangered species.

The Commissioner may issue a permit under certain circumstances for the taking, possessing, buying, selling, transporting, exporting, or shipping of any threatened or endangered species that appear on the state list of threatened or endangered species for scientific, biological, or educational purposes or for propagation to ensure their survival, provided that such action does not violate federal laws or regulations.

History. 1979, c. 372, §§ 3.1-1022; 1985, c. 326; 2008, c. 860.

§ 3.2-1005. Harvesting of threatened species; further powers of Board and Commissioner.

1. The Board may adopt regulations to permit and control the commercial harvest of certain threatened species that would prevent that species from becoming endangered or extinct.
2. The Commissioner may permit the taking of a threatened species when the Board has determined that its abundance in the Commonwealth justifies a controlled harvest that is not in violation of federal laws or regulations. The Commissioner shall take the necessary action to conserve, protect, restore, or propagate threatened and endangered species.

History. 1979, c. 372, § 3.1-1025; 1985, c. 326; 1989, c. 553; 1990, c. 369; 2008, c. 860.

§ 3.2-1006. License required to buy threatened species; records of purchases.

1. It shall be unlawful for any person to buy any threatened species or part thereof, which is listed in this chapter or regulations adopted hereunder, without first obtaining a license to do so from the Commissioner. This section shall not apply to the purchase or sale of real property upon which such threatened species or part thereof may be located. Application forms shall be provided by the Commissioner and shall be completed and returned with a fee of $10 made payable to the Treasurer of Virginia. Licenses shall expire on December 31 annually and there shall be no abatement in the annual fee. Licenses may be revoked at any time by the Commissioner for good cause.
2. The buyer of any threatened species or part thereof shall maintain and keep records of all purchases for the preceding 12 months on forms prescribed by the Commissioner. Records shall be sent or otherwise provided to the Commissioner within 30 days following the expiration of the license. Records shall be made available to the Commissioner during normal business hours for examination or information.

History. 1979, c. 372, § 3.1-1026; 2008, c. 860.

§ 3.2-1007. Wild ginseng declared threatened plant species.

The indigenous plant, Panax quinquefolius L. , of the Araliaceae family, commonly referred to as ginseng, is hereby declared a threatened plant species when it occurs in the wild. All persons buying wild ginseng or otherwise accepting this plant or part thereof for resale shall be licensed to do so and shall acquire wild ginseng or parts thereof in accordance with the provisions of this chapter and the regulations adopted hereunder. The wild ginseng harvest season shall be set by the Board. If any person takes wild ginseng, other than from his own land, on any other date it shall be deemed a violation of this chapter.

History. 1979, c. 372, § 3.1-1027; 1983, c. 121; 2008, c. 860.

§ 3.2-1008. Export certificate required for export of ginseng.

All persons who have ginseng either wild or artificially propagated in any quantity and who wish to export any amount out of the Commonwealth shall obtain an export certificate from the Department. This section shall not apply to persons exporting ginseng for personal or individual use in quantities not exceeding eight ounces in any calendar year. To obtain an export certificate, an individual shall keep accurate records of the year of harvest and the county of origin of the ginseng. In the case of dealers, a person shall keep accurate records of purchases, quantity purchased, whether the ginseng was wild or cultivated, county of origin, and the name of the seller. Such records shall be presented to the Commissioner for inspection.

History. 1983, c. 121, § 3.1-1027.1; 2008, c. 860.

§ 3.2-1009. Virginia birch declared endangered species.

Virginia birch or round-leaf birch, Betula uber of the Betulaceae family, is hereby declared an endangered species as defined herein and is subject to the provisions of this chapter to preserve those specimens known to occur in the Commonwealth.

History. 1979, c. 372, § 3.1-1028; 2008, c. 860.

§ 3.2-1010. Enforcement of chapter; summons.

Any conservation police officer or law-enforcement officer as defined in § 9.1-101 , excluding certain members of the Virginia Alcoholic Beverage Control Authority, may enforce the provisions of this chapter and the regulations adopted hereunder as well as those who are so designated by the Commissioner. Those designated by the Commissioner may issue a summons to any person who violates any provision of this chapter to appear at a time and place to be specified in such summons.

History. 1979, c. 372, § 3.1-1029; 2007, c. 87; 2008, c. 860; 2015, cc. 38, 730.

Editor’s note.

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: “That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019.”

The 2015 amendments.

The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted “members of the Virginia Alcoholic Beverage Control Authority” for “Alcoholic Beverage Control Board Members.”

§ 3.2-1011. Penalty.

Any person who violates any provision of this chapter or the regulations adopted hereunder is guilty of a Class 1 misdemeanor.

History. 1979, c. 372, § 3.1-1030; 1985, c. 326; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1100. Diversion of dedicated revenues.

1. The unexpended balances of the following special funds shall not be diverted or expended for any purpose other than each fund’s intended purpose. The special funds are:
   1. Apple Fund (§ 3.2-1206);
   2. Peanut Fund (§ 3.2-1906);
   3. Plant Pollination Fund (§ 3.2-2806);
   4. Virginia Agricultural Foundation Fund (§ 3.2-2905);
   5. Virginia Bright Flue-Cured Tobacco Promotion Fund (§ 3.2-2407);
   6. Virginia Cattle Industry Fund (§ 3.2-1305);
   7. Virginia Corn Fund (§ 3.2-1411);
   8. Virginia Cotton Fund (§ 3.2-1511);
   9. Virginia Dark-Fired Tobacco Promotion Fund (§ 3.2-2407.1);
   10. Virginia Egg Fund (§ 3.2-1605);
   11. Virginia Horse Industry Promotion and Development Fund (§ 3.2-1704);
   12. Virginia Marine Products Fund (§ 3.2-2705);
   13. Virginia Milk Commission Assessments Fund (§ 3.2-3220);
   14. Virginia Pork Industry Fund (§ 3.2-2005);
   15. Virginia Potato Fund (§ 3.2-1810);
   16. Virginia Sheep Industry Promotion and Development Fund (§ 3.2-2111);
   17. Virginia Small Grains Fund (§ 3.2-2211);
   18. Virginia Soybean Fund (§ 3.2-2311); and
   19. Virginia Wine Promotion Fund (§ 3.2-3005).
2. No provision of this subtitle shall be construed to give any board the authority to expend funds for legislative or political activity.

History. 1970, c. 310, § 3.1-796.24; 1991, c. 498, § 3.1-6.1; 2004, cc. 89, 212, 319; 2008, c. 860; 2011, c. 158; 2012, cc. 803, 835; 2016, c. 167; 2018, c. 469.

The 2011 amendments.

The 2011 amendment by c. 158 substituted “Beef” for “Cattle” in subdivision A 6.

The 2012 amendments.

The 2012 amendment by cc. 803 and 835, cl. 27, are identical, and updated the section reference in subdivision A 9.

The 2016 amendments.

The 2016 amendment by c. 167 deleted “unless authorized by a specific act of Assembly” following “intended purpose” in subsection A.

The 2018 amendments.

The 2018 amendment by c. 469 substituted “Virginia Cattle Industry Fund” for “Virginia Beef Industry Fund” in subdivision A 6.

§ 3.2-1101. Commodity boards reporting requirements.

All commodity boards established within the Department shall report their activities to the Board on an annual basis. This report shall be in a format as prescribed by the Board. The Board may review activities of the commodity boards and make such recommendations concerning their programs as it deems fit.

History. 1985, c. 173, § 3.1-4.1; 2001, cc. 17, 398; 2008, c. 860.

§ 3.2-1102. Collection of delinquent assessments; civil action.

Except as provided in §§ 3.2-1721, 3.2-1812, and 3.2-2408, the Tax Commissioner shall immediately notify any person who fails to pay an assessment pursuant to Part B of this subtitle and shall add a five percent penalty to the amount due. If such deficiency is not paid within 30 days after the date of such notice, then the amount of the deficiency shall bear interest, in accordance with § 58.1-15 , from the date the amount was due, and the Tax Commissioner shall collect any interest as part of the delinquent amount. If any person is delinquent in any payment of the money due or interest thereon, then the amount shall be collected by civil action in the name of the Commonwealth at the direction of the Tax Commissioner, and any person adjudged to be in default shall pay the cost of such action. The Attorney General, at the request of the Tax Commissioner, shall institute action in an appropriate court for the collection of any money due under Part B of this subtitle, including interest thereon. The Tax Commissioner may waive or remit such penalty, or portion thereof, in his discretion for good cause shown.

History. Code 1950, §§ 3-525.14, 3-598.16; 1966, cc. 658, 702, §§ 3.1-660, 3.1-763.10; 1970, cc. 310, 431, §§ 3.1-684.16, 3.1-796.27; 1977, c. 396; 1980, cc. 316, 395 §§ 3.1-796.11:7, 3.1-1046; 1985, c. 237; 1991, c. 587, § 3.1-684.55; 1993, c. 809; 1995, c. 691, § 3.1-1079; 1997, c. 873, §§ 3.1-1098, 3.1-1102; 1999, c. 751; 2005, cc. 864, 875, § 3.1-636.10; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and in the first sentence, deleted “and 3.2-2509” following “3.2-2408” and made a related change.

§ 3.2-1103. Duty of law-enforcement officers.

It shall be the duty of all state and local law-enforcement officers to assist in the enforcement of this subtitle.

History. Code 1950, §§ 3-239.11, 3-256; 1964, c. 306; 1966, c. 702, §§ 3.1-318, 3.1-335; 1970, c. 310, § 3.1-796.28; 2008, c. 860.

§ 3.2-1104. Preemption by federal law.

No provision of Chapter 12 (§ 3.2-1200 et seq.), Chapter 13 (§ 3.2-1300 et seq.), Chapters 15 (§ 3.2-1500 et seq.) through 21 (§ 3.2-2100 et seq.), Chapter 23 (§ 3.2-2300 et seq.), or Chapter 24 (§ 3.2-2400 et seq.) that is expressly preempted by a federal act or agreement governing commodity assessments shall be enforced or imposed until the termination of such act or agreement.

History. 2016, c. 565.

§ 3.2-1105. Commodity boards; appointment terms; quorum.

The following provisions apply to each commodity board established pursuant to the provisions of Chapter 12 (§ 3.2-1200 et seq.), Chapter 13 (§ 3.2-1300 et seq.), Chapters 16 (§ 3.2-1600 et seq.) through 19 (§ 3.2-1900 et seq.), Chapter 21 (§ 3.2-2100 et seq.), or Chapter 24 (§ 3.2-2400 et seq.):

1. The term for each appointment to a commodity board shall be for four years, with the exception of an appointment to fill a vacancy, which shall be for the unexpired term, unless otherwise authorized in this subtitle; and
2. A majority of the members of a commodity board shall constitute a quorum of that commodity board unless otherwise authorized in this subtitle.

History. 2016, c. 565; 2017, cc. 8, 66.

Editor’s note.

Acts 2016, c. 565, cl. 5 provides: “That this act shall not be construed to affect existing appointments to commodity boards listed in § 3.2-1105 of the Code of Virginia as created by this act for which the terms have not expired. However, any new appointments made to such boards on and after July 1, 2016, shall be made in accordance with the provisions of this act.”

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and inserted “or Chapter 24 (§ 3.2-2400 et seq.)” at the end of the introductory paragraph and made related changes.

§ 3.2-1106. Commodity board officers and reimbursement of expenses.

The following provisions apply to each commodity board established pursuant to the provisions of Chapter 12 (§ 3.2-1200 et seq.), Chapter 13 (§ 3.2-1300 et seq.), Chapters 15 (§ 3.2-1500 et seq.) through 19 (§ 3.2-1900 et seq.), Chapter 21 (§ 3.2-2100 et seq.), or Chapter 24 (§ 3.2-2400 et seq.):

1. The members of a commodity board shall elect one board member as chairman and such other officers as deemed appropriate unless otherwise authorized in this subtitle; and
2. Each appointed member of a commodity board shall serve without compensation. Such commodity board may reimburse any of its members for actual expenses incurred in the performance of his duties unless otherwise authorized in this subtitle. Such reimbursements shall be made from the special funds established pursuant to the provisions of Chapter 12 (§ 3.2-1200 et seq.), Chapter 13 (§ 3.2-1300 et seq.), Chapters 15 (§ 3.2-1500 et seq.) through 19 (§ 3.2-1900 et seq.), Chapter 21 (§ 3.2-2100 et seq.), or Chapter 24 (§ 3.2-2400 et seq.).

History. 2016, c. 565; 2017, cc. 8, 66.

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, inserted “or Chapter 24 (§ 3.2-2400 et seq.)” at the end of the introductory paragraph and subdivision 2 and made related changes.

§ 3.2-1200. Definitions.

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

“District” means one of the districts set forth in § 3.2-1205.

“Member” means a member of the Apple Board.

“Producer” means any person who, in a calendar year, grows or causes to be grown within the Commonwealth, for sale, a minimum of 5,000 tree run bushels of apples.

“Tree run bushel” means a container, with a content of not less than 2,140 cubic inches or more than 2,500 cubic inches, of apples that have not yet been graded or sized.

History. Code 1950, § 3-512.8; 1958, c. 149; 1966, c. 702, § 3.1-618; 1979, c. 531; 1985, c. 448; 1999, c. 793; 2004, c. 214; 2005, cc. 864, 875; 2008, c. 860.

§ 3.2-1201. Apple Board; composition and appointment of members.

1. The Apple Board is continued within the Department. The Apple Board shall consist of six members, with two members representing each district. Each member shall be a citizen of the Commonwealth and engaged in producing apples in the Commonwealth with a majority of his apple production occurring in the district he represents.
2. The Commissioner shall hold a special election in each district to elect each member of the Apple Board. The special election shall be held by secret ballot at least 30 days but not more than 90 days before the expiration of the term of office of any member. The Commissioner shall appoint the candidate receiving the highest number of votes in the special election as a member. The Apple Board may adopt and enforce regulations governing the conduct of special elections and voting therein. Such regulations shall be exempt from Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act. A producer shall be eligible to vote only in the district where the majority of his apple production occurs.

History. Code 1950, § 3-514; 1958, c. 148; 1964, c. 578; 1966, c. 702, § 3.1-634; 1974, c. 601; 1985, c. 448; 1999, c. 793, § 3.1-634.1; 2004, c. 214; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendment by c. 565, in subsection A, substituted “six” for “nine,” and “two” for “three.”

§ 3.2-1202. Apple Board membership.

If a vacancy occurs before the expiration of any term of office, the Commissioner shall fill such vacancy within 30 days after the vacancy by a special election held to elect a member for the unexpired term.

History. Code 1950, § 3-514; 1958, c. 148; 1964, c. 578; 1966, c. 702, § 3.1-634; 1974, c. 601; 1985, c. 448; 1999, c. 793, § 3.1-634.1; 2004, c. 214; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendment by c. 565 deleted “The terms for appointments to the Apple Board shall be for three years” from the beginning of the section.

§ 3.2-1203. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1203, relating to Apple Board officers and their compensation, was derived from Code 1950, § 3-514; 1958, c. 148; 1964, c. 578; 1966, c. 702, § 3.1-634; 1974, c. 601; 1985, c. 448; 1999, c. 793; 2004, c. 214; 2008, c. 860.

§ 3.2-1204. Powers and duties of Apple Board; report.

1. The Apple Board may:
   1. Administer, manage and make expenditures from the Apple Fund;
   2. Plan and conduct campaigns of research, education, publicity, and industry development for the purpose of enhancing the viability and profitability of the Virginia apple industry;
   3. Make contracts to accomplish the purposes of this chapter;
   4. Cooperate with other state, regional, national, and international organizations in research concerning education on promotion of apples, and expend moneys of the Apple Fund for such purposes;
   5. Establish committees of the Apple Board to address horticultural and such other issues as the Apple Board deems pertinent to the Virginia apple industry; and
   6. Do whatever else may be necessary to effectuate the purposes of this chapter.
2. The chairman shall make a report at least annually, furnishing Apple Board members with a statement of total receipts and disbursements of the Apple Board for the year. The chairman shall annually file with the Commissioner a copy of the report and audit that is required under the Apple Fund.

History. Code 1950, § 3-515; 1958, c. 148; 1966, c. 702, § 3.1-635; 1978, c. 540; 1999, c. 793; 2004, c. 214; 2008, c. 860.

§ 3.2-1205. Commercial apple-producing districts designated.

The commercial apple-producing districts of the Commonwealth are as follows:

Area I. Northern Virginia District — Clarke, Fairfax, Frederick, and Loudoun Counties and the City of Winchester.

Area II. Central Virginia District — Accomack, Fauquier, King William, Lancaster, Madison, Middlesex, Northampton, Northumberland, Orange, Page, Rappahannock, Richmond, Rockingham, Shenandoah, Warren, and Westmoreland Counties.

Area III. Southern Virginia District — Albemarle, Amherst, Augusta, Bedford, Botetourt, Buckingham, Campbell, Carroll, Charlotte, Dickenson, Franklin, Floyd, Giles, Grayson, Halifax, Hanover, Henry, Isle of Wight, James City, Lee, Louisa, Lunenburg, Montgomery, Nelson, Nottoway, Patrick, Pittsylvania, Prince Edward, Pulaski, Roanoke, Rockbridge, Russell, Smyth, Southampton, Surry, Wise, and Wythe Counties.

Whenever the commercial production of apples begins in any locality not included in this section, such locality shall become a part of the nearest district that has the lowest commercial apple production according to production records of the Department.

History. Code 1950, § 3-513.1; 1964, c. 578; 1966, c. 702, § 3.1-632; 1974, c. 601; 1982, c. 415; 1999, c. 793; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendment by c. 565 inserted “Campbell” in the fourth paragraph; and substituted “in this section” for “above” in the last paragraph.

§ 3.2-1206. Apple Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Apple 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 solely for the purposes of administration and enforcement of this chapter, including the payment for personal services and expenses of agents of the Apple Board and the payment of rent, services, materials, and supplies necessary to effectuate the purposes and objects of this chapter, or as specifically provided in any referendum ratified pursuant to this chapter. Expenditures and disbursements from the Fund shall be made by the Apple Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Apple Board. The Auditor of Public Accounts shall audit all the accounts of the Apple Board as provided for in § 30-133.

History. Code 1950, §§ 3-512.16, 3-512.17; 1958, c. 149; 1966, c. 702, §§ 3.1-626, 3.1-627; 1999, c. 793; 2004, c. 214; 2005, cc. 864, 875; 2008, c. 860.

§ 3.2-1207. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1207, relating to bonds required for employees, was derived from Code 1950, § 3-516; 1966, c. 702, § 3.1-636; 1999, c. 793; 2008, c. 860.

§ 3.2-1208. Referendum on question of levying apple excise tax.

The Board shall authorize the holding of a referendum as set forth in this article. The Commissioner shall be fully empowered and directed to hold and conduct a referendum on the question of whether or not the producers of apples in the Commonwealth are willing to pay an excise tax on apples to support additional research, education, publicity, and industry development of the apple industry. The amount of tax to be voted upon in the referendum shall be 2.5 cents ($0.025) per tree run bushel of apples grown by producers in the Commonwealth. The cost of conducting a referendum under this section shall be paid by the Virginia State Horticultural Society.

History. 2005, cc. 864, 875, § 3.1-636.1; 2008, c. 860.

§ 3.2-1209. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall, under the regulations adopted by the Board pursuant to § 3.2-112, arrange for the use of any polling places if necessary.
2. The Commissioner shall, at least 60 days before the date on which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where apples are produced. The clerk of the court shall post the notice on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall, at least 60 days prior to the holding of any referendum under this article, publish notice of the referendum in a newspaper of daily general circulation in Richmond, Virginia, and send a notice of the referendum to a newspaper of general circulation in each locality where apples are produced.The notice shall contain the date, hours, voting places, and method of voting in the referendum; the amount of assessment to be collected, the means by which the assessment will be collected, and the general purposes for which the assessment will be used; and the regulations adopted by the Board pursuant to § 3.2-112.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and shall notify, by mail, each member of the Board of the results.

History. 2005, cc. 864, 875, § 3.1-636.3; 2008, c. 860.

§ 3.2-1210. Questions to be printed on ballots.

The question to be printed on the ballots used in the referendum held under § 3.2-1208, shall be:

“Do you favor the levy of an excise tax of 2.5 cents ($0.025) per tree run bushel of ungraded apples grown in the Commonwealth for sale by producers of at least 5,000 tree run bushels per calendar year, to be paid into the Apple Fund and distributed as follows: up to 40 percent paid to the U.S. Apple Association for publicity and industry development; up to 20 percent paid to the Virginia State Horticultural Society for education and industry development; up to 20 percent paid to the Virginia Apple Research Program for research; up to 10 percent to be used for administration of this article; and up to 10 percent to be held in the Apple Fund as a reserve with: (i) a maximum amount of $125,000; and (ii) a requirement that any appropriation from the reserve receive at least two-thirds of the votes of the members of the Apple Board? If the maximum amount of the reserve fund is met, then the amount of that 10 percent distribution that exceeds the reserve fund shall be divided equally among the U.S. Apple Association, the Virginia State Horticultural Society, and the Virginia Apple Research Program.

_______________ Yes

_______________ No.”

History. 2005, cc. 864, 875, § 3.1-636.4; 2008, c. 860.

§ 3.2-1211. Persons eligible to vote.

Any producer in the year preceding the date of the referendum held pursuant to this article shall be eligible to vote in such referendum if he so certifies on forms approved by the Commissioner. Any person who meets these requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in any other respect. Such person may vote provided that he is a resident of the Commonwealth or qualified to do business in the Commonwealth. Any person who is not an individual shall vote by its authorized representative.

History. 2005, cc. 864, 875, § 3.1-636.5; 2008, c. 860.

§ 3.2-1212. Referenda results; action of Governor.

If the Governor finds the referendum in order and that more than one-half of those voting are in favor of the excise tax on apples pursuant to § 3.2-1210, then the Governor shall so proclaim. Upon such proclamation by the Governor, the excise tax on apples shall be established. If the Governor finds that more than one-half of those voting are in opposition to the excise tax on apples pursuant to § 3.2-1210, then the Governor shall not so proclaim and the excise tax on apples shall not be established.

History. 2005, cc. 864, 875, § 3.1-636.6; 2008, c. 860.

§ 3.2-1213. Referenda.

The Board, upon petition by at least 10 percent of the producers in the Commonwealth as determined by the Commissioner, shall provide for a referendum on the continuation of the Apple Board or amending the excise tax on apples if established pursuant to § 3.2-1208. The Board shall not act on such a petition for conducting a referendum until at least five years have passed since the last referendum. Any referendum held under this section shall be conducted in accordance with this chapter.

History. 2005, cc. 864, 875, § 3.1-636.7; 2008, c. 860.

§ 3.2-1214. Referenda results; action of Governor.

If the Governor finds any referenda held pursuant to this article in order and that more than one-half of those voting are in opposition to the continuation of the Apple Board, then the Governor shall so proclaim and upon such proclamation the Apple Board shall be discontinued. If the Governor finds that more than one-half of those voting are in favor of the continuation of the Apple Board, then the Governor shall not so proclaim and the Apple Board shall continue.

If the Governor finds that more than one-half of those voting are in favor of amending the excise tax on apples, then he shall so proclaim and upon such proclamation the excise tax shall be amended as stated in the referendum. If the Governor finds that more than one-half of those voting are in opposition to amending the excise tax on apples, then he shall not so proclaim and the excise tax on apples shall not be amended.

History. 2005, cc. 864, 875, § 3.1-636.8; 2008, c. 860.

§ 3.2-1215. Disposition of excise tax by producer; reports.

1. Every producer shall submit to the Tax Commissioner the excise tax levied on apples grown in the Commonwealth in a calendar year by January 31 of the following year. The Tax Commissioner shall promptly pay the assessments into the Virginia state treasury to the credit of the Apple Fund.
2. Every producer shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner along with the excise tax submitted pursuant to subsection A, and keep copies of the reports for a period of not less than three years from the time the report was produced. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner shall provide to the Apple Board or the Commissioner copies of reports submitted pursuant to this section.

History. 2005, cc. 864, 875, § 3.1-636.9; 2008, c. 860.

Cross references.

As to exclusions under the Virginia Freedom of Information Act for proprietary records and trade secrets, see § 2.2-3705.6 .

§ 3.2-1216. Records to be kept by producer.

Every producer shall maintain a complete record of the apples grown by him and shall preserve the records for at least three years from the time such apples are grown. The records shall be established and maintained as required by the Tax Commissioner and shall be open to the inspection of the Tax Commissioner.

History. 2005, cc. 864, 875, § 3.1-636.11; 2008, c. 860.

§ 3.2-1217. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any producer to fail to submit to the Tax Commissioner any report required under this article within 60 days after the time such report is required to be submitted.
2. For any producer knowingly to report falsely to the Tax Commissioner any information required under this article.
3. For any producer to fail to keep a complete record of the apples grown by him or to not preserve such records for a period of at least three years from the time such apples are grown.

History. 2005, cc. 864, 875, § 3.1-636.12; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1300. Definitions.

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

“Board” means the Cattle Industry Board.

“Cattle” means beef-type and dairy-type cattle sold for a consideration in excess of $100 per head in the Commonwealth.

“Handler” means, at the point where the cattle are weighed or traded and the value determined, an operator of any stockyard, livestock dealership, slaughterhouse, packing plant, or livestock auction market, or any other person who purchases from a producer.

“Producer” means any person engaged in the business of raising cattle.

History. 1970, c. 310, §§ 3.1-796.13, 3.1-796.26; 1978, c. 540; 1983, c. 375; 1985, cc. 237, 448; 2008, c. 860; 2018, c. 469.

Editor’s note.

Acts 2018, c. 469, cl. 3 provides: “That the provisions of this act shall not affect the USDA-approved collection and administration of the National Beef Checkoff in accordance with the 1985 National Beef Promotion Act and Order or the dispersal of any collected funds in accordance with the guidelines of a marketing plan approved by the national Cattlemen’s Beef Promotion and Research Board.”

The 2018 amendments.

The 2018 amendment by c. 469 rewrote the section.

§ 3.2-1301. Cattle Industry Board; composition and appointment of members.

1. The Cattle Industry Board, established by the passage of a referendum held pursuant to Chapter 375 of the Acts of Assembly of 1983, is continued within the Department.The Board shall be composed of 11 members, each of whom shall be a citizen of the United States and a resident of the Commonwealth. Each member shall have been actively engaged in the type of production or business that he will represent on the Board for at least five years, shall derive a substantial proportion of his income from such production or business, and shall continue to be actively engaged in such production or business during his term.
2. The Governor shall appoint the members, who represent the cattle industry as follows:
   1. Six beef cattle producers, one from each cattle production area of the Commonwealth. The six areas shall be designated by the Board in general accordance with census-based feeder cattle populations and updated every five years using USDA National Agricultural Statistics Service information.
   2. Two producers doing business in any of the six cattle production areas.
   3. One dairy producer.
   4. Two handlers.
3. Such appointments shall be made by the Governor and confirmed in accordance with § 2.2-107 . The Governor shall be guided in his appointments by nominations made by the Virginia Farm Bureau Federation, Virginia Cattlemen’s Association, Virginia Livestock Markets Association, or other agricultural organizations representing Virginia cattle producers. Each such agricultural organization may nominate producers from each production area or for each Board position. The recommendations shall be submitted prior to the expiration of the member’s term for which the nomination is being provided. If any such agricultural organization fails to provide its nominations, the Governor may appoint other nominees who meet the criteria set out in this subsection. However, no nomination shall be considered if the nominee currently serves on a board appointed pursuant to the USDA-approved collection and administration of the National Beef Checkoff in accordance with the federal 1985 National Beef Promotion Act and Order.

History. 1970, c. 310, §§ 3.1-796.15, 3.1-796.21; 1983, c. 375; 1985, c. 448; 2008, c. 860; 2011, cc. 158, 691, 714; 2016, c. 565; 2018, c. 469.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2018, c. 469, cl. 3 provides: “That the provisions of this act shall not affect the USDA-approved collection and administration of the National Beef Checkoff in accordance with the 1985 National Beef Promotion Act and Order or the dispersal of any collected funds in accordance with the guidelines of a marketing plan approved by the national Cattlemen’s Beef Promotion and Research Board.”

Acts 2018, c. 469, cl. 6 provides: “That the initial appointments of the members to the Cattle Industry Board, as created by § 3.2-1301 of the Code of Virginia, as amended by this act, shall be staggered as follows: (i) three beef cattle producers from three of the cattle production areas of the Commonwealth for terms of two years and three such beef cattle producers for terms of four years; (ii) one producer doing business in any of the six cattle production areas for a term of two years and one such producer for a term of four years; (iii) one dairy producer for a term of four years; and (iv) one handler for a term of two years and one handler for a term of four years.”

Acts 2018, c. 469, cl. 7 provides: “That the unexpired term of any member of the Beef Industry Council, established by the passage of a referendum held pursuant to Chapter 375 of the Acts of Assembly of 1983, shall expire on July 1, 2018. Any such member shall be eligible for appointment to the Virginia Cattle Industry Board pursuant to the provisions of Chapter 13 (§ 3.2-1300 et seq.) of Title 3.2 of the Code of Virginia, as amended by this act.”

The 2011 amendments.

The 2011 amendment by c. 158, throughout subsection A and in subdivision C 1, substituted “Beef Industry Council” for “Cattle Industry Board.”

The 2011 amendments by cc. 691 and 714 are identical, and added the last paragraph.

The 2016 amendments.

The 2016 amendment by c. 565, in subsection A, substituted “Acts of Assembly of 1983” for “1983 Acts of Assembly”; and in the last paragraph, deleted “at least 90 days” following “shall be submitted,” and “at least 90 days before the expiration date pursuant to this section” preceding “the Governor.”

The 2018 amendments.

The 2018 amendment by c. 469 rewrote the section.

§ 3.2-1302. Repealed by Acts 2018, c. 469, cl. 2.

Editor’s note.

Former § 3.2-1302, pertaining to Beef Industry Council vacancies, derived from Acts 1970, c. 310, § 3.1-796.22; 2008, c. 860; 2011, c. 158; 2016, c. 565.

§ 3.2-1302.1. Cattle Industry Board officers and meetings.

The Board shall elect a chairman from the membership of the Board and such other officers as deemed appropriate. The Board shall meet once per year and at such other times as called by the chairman. The chairman may call special meetings at any time and shall call a special meeting when requested by four or more members of the Board.

History. 2018, c. 469.

§ 3.2-1303. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1303, relating to Beef Industry Council officers and their compensation, was derived from Acts 1970, c. 310, § 3.1-796.22; 2008, c. 860; 2011, c. 158.

§ 3.2-1304. Powers and duties of Cattle Industry Board.

1. The Cattle Industry Board shall be responsible for the promotion and economic development of the Virginia cattle industry and of beef products, including the improvement of the commercial value of cattle for Virginia producers.
2. The Board may expend funds collected pursuant to § 3.2-1306 to provide for programs to serve the Virginia cattle industry for market development, education, publicity, research, and the promotion of the sale and use of cattle and beef products; to manage the funds so as to accumulate a reserve for contingencies; to establish an office and employ such technical, professional, and other assistants as may be required; and to contract for market development, publicity, research, advertising, and other promotional services.
3. The Board shall establish a meeting place anywhere within the Commonwealth, but the selection of the location shall be guided by consideration for the convenience of the majority of those most likely to have business with the Board or to be affected by this chapter.
4. An annual report shall be made by the Board to the Commissioner and shall be published as a public record to include a statement on receipts and itemized disbursements of the Virginia Cattle Industry Fund.

History. 1970, c. 310, §§ 3.1-796.14, 3.1-796.22 to 3.1-796.24; 2008, c. 860; 2011, c. 158; 2016, c. 565; 2018, c. 469.

Editor’s note.

Acts 2016, c. 565, cl. 3 provides: “That until July 1, 2018, no handler shall collect or remit the Virginia cattle assessment of 25 cents ($0.25) per head pursuant to the provisions of subsection A of § 3.2-1306 of the Code of Virginia.”

Acts 2016, c. 565, cl. 4 provides: “That the Beef Industry Council shall survey industry members about the utility of Chapter 13 (§ 3.2-1300 et seq.) of Title 3.2 of the Code of Virginia and the cattle assessments collected pursuant to the provisions of that chapter and shall report its findings to the General Assembly by January 1, 2018.”

Acts 2018, c. 469, cl. 3 provides: “That the provisions of this act shall not affect the USDA-approved collection and administration of the National Beef Checkoff in accordance with the 1985 National Beef Promotion Act and Order or the dispersal of any collected funds in accordance with the guidelines of a marketing plan approved by the national Cattlemen’s Beef Promotion and Research Board.”

Acts 2018, c. 469, cl. 5 provides: “That prior to expending a substantial amount of the funds collected pursuant to § 3.2-1306 of the Code of Virginia, as amended by this act, the Cattle Industry Board shall develop and publish a strategic plan that provides for programs to serve the Virginia cattle industry for market development, education, publicity, research, and the promotion of the sale and use of cattle and beef products. In its development of the plan, the Board shall include input sessions that are open to the public, including members of the cattle industries.”

The 2011 amendments.

The 2011 amendment by c. 158 substituted “Beef Industry Council” for “Cattle Industry Board” throughout the section.

The 2016 amendments.

The 2016 amendment by c. 565, in subdivision C 12, deleted “including the National Livestock and Meat Board” following “contract with organizations.”

The 2018 amendments.

The 2018 amendment by c. 469 rewrote the section.

§ 3.2-1305. Virginia Cattle Industry Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Cattle Industry Fund, hereinafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All funds collected pursuant to § 3.2-1306 shall be paid into the state treasury and credited to the Fund. 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.

All moneys credited to the Fund shall be used exclusively as set forth in this chapter. The Auditor of Public Accounts shall audit all the accounts of the Board as is provided for in § 30-133. Expenditures and disbursements from the Fund shall be made by the Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Board.

History. 1970, c. 310, § 3.1-796.26; 1978, c. 540; 1983, c. 375; 1985, c. 237; 2008, c. 860; 2011, c. 158; 2018, c. 469.

Editor’s note.

Acts 2018, c. 469, cl. 3 provides: “That the provisions of this act shall not affect the USDA-approved collection and administration of the National Beef Checkoff in accordance with the 1985 National Beef Promotion Act and Order or the dispersal of any collected funds in accordance with the guidelines of a marketing plan approved by the national Cattlemen’s Beef Promotion and Research Board.”

The 2011 amendments.

The 2011 amendment by c. 158, in the first paragraph, substituted “Virginia Beef Industry Fund” for “Virginia Cattle Industry Fund,” and in the last paragraph, substituted “Beef Industry Council” for “Cattle Industry Board” throughout.

The 2018 amendments.

The 2018 amendment by c. 469 substituted “Virginia Cattle Industry Fund” for “Virginia Beef Industry Fund” in the first sentence of the first paragraph; and substituted “Board” for “Beef Industry Council” throughout the second paragraph.

§ 3.2-1306. Collection and disposition of assessment by handler; reports.

1. Beginning January 1, 2019, and ending July 1, 2023, every handler shall deduct 50 cents ($0.50) per head from the proceeds of sale owed to the respective owners of all cattle and calves when sold in the Commonwealth, with the exception of dairy cows going back to farms for milk, animals selling for less than $100 per head, or cattle of any type weighing 99 pounds or less. The handler shall remit such assessments to the Tax Commissioner on or before the last day of each month in which the handler sells cattle.
2. Every handler shall complete reports on forms furnished by the Tax Commissioner and submit such reports to the Tax Commissioner along with the assessments collected pursuant to subsection A. Each report shall include a statement of the number of cattle handled and the amount of money collected, and any other information deemed necessary by the Tax Commissioner to carry out his functions. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner is authorized to provide the Board with a list of taxpayers and amounts paid.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.
4. Any producer from whom an assessment has been collected pursuant to subsection A who is dissatisfied with the assessment and the Board’s use of the assessment may, within 90 days of the collection of the assessment, make a written demand with documented proof of sale for a refund of the assessment from the Board. The Board shall refund such assessments within 90 days of receiving a written demand for a refund.

History. 1970, c. 310, §§ 3.1-796.25, 3.1-796.26; 1978, c. 540; 1983, c. 375; 1985, c. 237; 2008, c. 860; 2011, c. 158; 2018, c. 469.

Editor’s note.

Acts 2016, c. 565, cl. 3 provides: “That until July 1, 2018, no handler shall collect or remit the Virginia cattle assessment of 25 cents ($0.25) per head pursuant to the provisions of subsection A of § 3.2-1306 of the Code of Virginia.”

Acts 2016, c. 565, cl. 4 provides: “That the Beef Industry Council shall survey industry members about the utility of Chapter 13 (§ 3.2-1300 et seq.) of Title 3.2 of the Code of Virginia and the cattle assessments collected pursuant to the provisions of that chapter and shall report its findings to the General Assembly by January 1, 2018.”

Acts 2018, c. 469, cl. 3 provides: “That the provisions of this act shall not affect the USDA-approved collection and administration of the National Beef Checkoff in accordance with the 1985 National Beef Promotion Act and Order or the dispersal of any collected funds in accordance with the guidelines of a marketing plan approved by the national Cattlemen’s Beef Promotion and Research Board.”

Acts 2018, c. 469, cl. 4 provides: “That between July 1, 2018, and January 1, 2019, no handler shall collect or remit any Virginia cattle assessment pursuant to the provisions of subsection A of § 3.2-1306 of the Code of Virginia, as amended by this act. No Virginia cattle assessment that was unpaid or uncollected prior to July 1, 2018, shall be collected by the Department of Taxation.”

Acts 2018, c. 469, cl. 5 provides: “That prior to expending a substantial amount of the funds collected pursuant to § 3.2-1306 of the Code of Virginia, as amended by this act, the Cattle Industry Board shall develop and publish a strategic plan that provides for programs to serve the Virginia cattle industry for market development, education, publicity, research, and the promotion of the sale and use of cattle and beef products. In its development of the plan, the Board shall include input sessions that are open to the public, including members of the cattle industries.”

The 2011 amendments.

The 2011 amendment by c. 158 substituted “Beef Industry Council” for “Cattle Industry Board” in subsection B.

The 2018 amendments.

The 2018 amendment by c. 469 rewrote subsection A; in subsection B, substituted “Board” for “Beef Industry Council” in the last sentence; and added subsection D.

§ 3.2-1307. Records to be kept by handler.

Every handler shall keep a complete record of the number of cattle subject to payment bought by him for a period of not less than three years. Such record shall be open for inspection by the Tax Commissioner, and shall be established and maintained as required by the Tax Commissioner.

History. 1970, c. 310, § 3.1-796.26; 1978, c. 540; 1983, c. 375; 1985, c. 237; 2008, c. 860.

§ 3.2-1308. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any first handler to fail to submit to the Tax Commissioner any statement or report required in this chapter within 60 days from the time such statement or report is required to be submitted.
2. For any first handler knowingly to report falsely to the Tax Commissioner the number of taxable cattle handled by him during any period or to falsify the records.

History. 1970, c. 310, § 3.1-796.27; 1985, c. 237; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1400. Definitions.

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

“Corn” means all corn sold except sugar corn, popcorn, and ornamental corn.

“Country buyer” means any person who buys corn from a producer.

“Exporter” means any person offering corn for export sale.

“Handler” means any processor, dealer, shipper, country buyer, exporter, or any other business entity that purchases corn from a producer. The term shall also mean any person that buys, accepts for shipment, or otherwise acquires property in corn from a producer, and includes a mortgagee, pledgee, lienor, or other person having a claim against the producer, when the actual or constructive possession of corn is taken as part payment or in satisfaction of such mortgage, pledge, lien, or claim. The term shall also mean a producer who transports and sells his corn outside of the Commonwealth.

“Processor” means any person who changes the physical form or characteristic of corn for the purpose of preparing it for sale.

“Producer” means any person who grew corn in the Commonwealth and sold corn during the preceding three years.

“Seedsman” means any person who offers corn seeds for sale.

History. 1980, c. 395, §§ 3.1-1032, 3.1-1043, 3.1-1044; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-1401. Corn Board; composition and appointment of members.

The Corn Board, established by the passage of a referendum held pursuant to Chapter 395 of the 1980 Acts of Assembly, is continued within the Department. The Corn Board shall be composed of 11 members appointed by the Governor and confirmed in accordance with § 2.2-107 from nominations by producer organizations representing corn producers. These organizations shall nominate at least two producers from each production area of corn as defined in § 3.2-1410 and such nominations shall be submitted at least 90 days before the expiration of the member’s term for which the recommendations are provided. If said organizations fail to provide the nominations at least 90 days before the expiration of the term, the Governor may appoint other nominees that meet the criteria provided by this section. The Governor shall appoint at least one producer from each production area and the membership of the Corn Board shall be composed of a majority of producers. The Governor shall appoint one member, if available, from each of the following classifications: seedsman, processor, country buyer, and exporter.

History. 1980, c. 395, § 3.1-1043; 1985, c. 448; 1987, c. 476; 2008, c. 860; 2011, cc. 691, 714.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added “and such nominations shall be submitted at least 90 days before the expiration of the member’s term for which the recommendations are provided” to the end of the third sentence and added the fourth sentence.

§ 3.2-1402. Corn Board membership terms.

The terms for appointments to the Corn Board shall be three years. The Governor shall fill any vacancy occurring before the expiration of any term for the unexpired term. If possible, vacancies shall be filled from the production area or classification from which the vacancy occurred from nominations as described in § 3.2-1410.

History. 1980, c. 395, § 3.1-1043; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-1403. Corn Board officers and compensation.

1. The Corn Board shall elect a chairman and such other officers as deemed appropriate.
2. Members of the Corn Board shall not receive compensation for attendance at meetings of the Corn Board, but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties.

History. 1980, c. 395, § 3.1-1043; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-1404. Powers and duties of Corn Board.

1. The Corn Board shall have charge of the management and expenditure of the Virginia Corn Fund established in the state treasury.
2. The Corn Board may expend funds to provide for programs of market development, education, publicity, research, and the promotion of the sale and use of corn; to manage the funds so as to accumulate a reserve for contingencies; to establish an office and employ such technical, professional, and other assistants as may be required; and to contract for market development, publicity, research, advertising, and other promotional services.
3. The Corn Board may establish an executive committee and charge it with such powers, duties, and functions as is deemed proper.
4. The Corn Board may enter into an agreement with the Federal Commodity Credit Corporation to collect the specified assessment on all corn pledged as collateral for a commodity credit corporation price support loan or purchase by the Federal Commodity Credit Corporation under its loan or purchase programs.
5. The chairman of the Corn Board shall make an annual report to the Corn Board, including a statement of the total receipts and disbursements for the year, and shall file a copy of the report with the Commissioner.

History. 1980, c. 395, § 3.1-1043; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-1405. Referenda.

The Board, upon petition by a group of corn producers representing at least 10 percent of the number of the Commonwealth’s corn producers as determined by the Commissioner, may provide for a referendum on the continuation of the assessment. If the Governor shall determine that a simple majority of those voting are not in favor of the assessment, the Board shall hold no new referenda for at least one year after the Governor has declared his findings, and then only after receiving a petition signed by at least 10 percent of the number of the Commonwealth’s corn producers. The cost of conducting any such referendum as above prescribed shall come from funds paid into the Virginia Corn Fund as defined in § 3.2-1411. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1980, c. 395, § 3.1-1041; 2008, c. 860.

§ 3.2-1406. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall arrange for and manage any referendum conducted under this chapter.
2. The Commissioner shall, 60 days before the date upon which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where corn is produced. The clerk of the circuit court shall post the notice and regulations on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall give notice of the referendum in a newspaper of general circulation in Richmond, Virginia, and shall send a notice of the referendum to a newspaper of general circulation in each locality where corn is produced, at least 60 days prior to the holding of any referendum under this chapter. The notice shall contain the date, hours, and method of voting in such referendum, the amount of assessment to be collected, the means by which such assessment shall be collected, the general purposes for which the assessments will be used, and the regulations adopted by the Board pursuant to this chapter.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for such referendum and shall, under regulations adopted by the Board, arrange for the use of polling places, if necessary.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and the Board.

History. 1980, c. 395, §§ 3.1-1034, 3.1-1037 to 3.1-1039; 2008, c. 860.

§ 3.2-1407. Question to be printed on ballots.

The question to be printed on the ballots used in a referendum held pursuant to this chapter shall be as follows:

“Do you favor additional market development, education, publicity, research, and the promotion of the sale and use of corn and the continuation of the levy of an assessment of one cent per bushel in accordance with the provisions of the Corn Board law?

_______________ For

_______________ Against.”

History. 1980, c. 395, § 3.1-1042; 1989 c. 401; 2008, c. 860.

§ 3.2-1408. Persons eligible to vote.

Each producer who sold corn in two of the past three years next preceding the date of the referendum held pursuant to this chapter shall be eligible to vote in such referendum, provided that he shall so certify sale and point of sale on forms approved by the Board. Any person meeting such requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in other respects. Any person who is not an individual shall vote by its authorized representative.

History. 1980, c. 395, § 3.1-1035; 2008, c. 860.

§ 3.2-1409. Referenda results; action of Governor.

If the Governor finds any referendum in order and that at least a simple majority of those voting are in opposition to the continuation of the assessment on corn, he shall so proclaim and upon such proclamation the assessment on corn shall be discontinued. If the Governor finds that at least a simple majority of those voting are in favor of the continuation of the assessment on corn, the Governor shall not so proclaim.

History. 1980, c. 395, § 3.1-1039; 2008, c. 860.

§ 3.2-1410. Production areas designated.

The following production areas are designated for the purposes of this chapter:

Area I: the Counties of Accomack, Northampton, and Isle of Wight and the Cities of Suffolk, Chesapeake, and Virginia Beach;

Area II: the Counties of Southampton, Sussex, Surry, Prince George, Dinwiddie, Greensville, and Brunswick;

Area III: the Counties of Westmoreland, Northumberland, Richmond, Lancaster, Essex, Middlesex, Mathews, King and Queen, Gloucester, King William, New Kent, York, Charles City, and James City and the City of Newport News;

Area IV: the Counties of Henrico, Hanover, Caroline, King George, Goochland, Louisa, Spotsylvania, Stafford, Fluvanna, Orange, Culpeper, Albemarle, Greene, and Madison;

Area V: the Counties of Prince William, Fairfax, Fauquier, Loudoun, Rappahannock, Warren, Clarke, Page, Shenandoah, and Frederick;

Area VI: the Counties of Mecklenburg, Lunenburg, Nottoway, Amelia, Chesterfield, Halifax, Charlotte, Prince Edward, Cumberland, Powhatan, Pittsylvania, Campbell, Appomattox, Buckingham, Bedford, Amherst, and Nelson; and

Area VII: the Counties of Henry, Franklin, Roanoke, Botetourt, Rockbridge, Augusta, Rockingham, Patrick, Floyd, Montgomery, Craig, Alleghany, Bath, Highland, Carroll, Pulaski, Giles, Grayson, Wythe, Bland, Smyth, Tazewell, Washington, Russell, Buchanan, Scott, Wise, Dickenson, and Lee.

History. 1980, c. 395, § 3.1-1043; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-1411. Virginia Corn Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Corn 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 solely for the purposes set forth in this chapter. In carrying out the purposes of this chapter, the Corn Board may cooperate with other state, regional, national, and international agricultural organizations in market development, education, publicity, research, and the promotion of the sale and use of corn. The proceeds from such activities shall be promptly paid into the Virginia Corn Fund. The Auditor of Public Accounts shall audit all the accounts of the Corn Board as provided for in § 30-133.

Expenditures and disbursements from the Fund shall be made by the Corn Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Corn Board.

History. 1980, c. 395, §§ 3.1-1047, 3.1-1048; 2008, c. 860.

§ 3.2-1412. Collection and disposition of assessment by handler; reports.

1. Every handler shall deduct from payments for corn made to a producer the amount of the assessment levied thereon, and shall remit such assessment to the Tax Commissioner pursuant to this chapter.
2. A report to the Tax Commissioner shall be on forms prescribed and furnished by the Tax Commissioner, and shall be a statement of the gross volume of corn handled by the handler and shall be filed with the Tax Commissioner covering corn handled during the preceding period, as set forth by the Tax Commissioner. The Tax Commissioner shall set forth the filing date or dates for reports and assessments and the period to be covered after consultation with the Virginia Grain Producers Association and Corn Board. The assessment levied on corn shall be due and payable by the handler on the same day as the report is due. The assessment shall be paid to the Tax Commissioner and be promptly paid into the state treasury to the credit of the Virginia Corn Fund.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.

History. 1980, c. 395, §§ 3.1-1044, 3.1-1046; 1987, c. 476; 2008, c. 860.

§ 3.2-1413. Records to be kept by handlers.

Every handler shall keep a complete record of the corn handled by him for a period of not less than three years from the time the corn was handled. Such records shall be open to the inspection of the Tax Commissioner, and shall be established and maintained as required by the Tax Commissioner.

History. 1980, c. 395, § 3.1-1045; 2008, c. 860.

§ 3.2-1414. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler knowingly to report falsely to the Tax Commissioner the quantity of corn handled by him during any period.
2. For any handler to falsify the records of the corn handled by him.
3. For any handler to preserve the records of the corn handled by him for less than three years from the time such corn was handled.

History. 1980, c. 395, § 3.1-1049; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1500. Definitions.

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

“Assessment” means moneys to be collected as authorized by this chapter.

“Bale” means a closely pressed package of ginned cotton that weighs approximately 480 pounds.

“Cotton” means the field crop of the genus Gossypium grown to be further processed into consumable goods.

“Farming unit” means any sole proprietorship, corporation, or partnership and includes land owned and leased by any such business entity.

“Gin” means to remove seed and foreign matter from cotton and make it into a bale.

“Handler” means a commercial enterprise that gins cotton.

“Producer” means any person who grows, harvests, and sells cotton in Virginia.

History. 1997, c. 873, § 3.1-1081; 1999, c. 751; 2008, c. 860.

§ 3.2-1501. Cotton Board; composition and appointment of members; quorum.

The Cotton Board, established by the passage of a referendum held pursuant to Chapter 873 of the Acts of Assembly of 1997, is continued within the Department. The Cotton Board shall be composed of eight members appointed by the Governor, each of whom shall be a resident of Virginia and a producer in Virginia. The Governor shall be guided in his appointments from nominations made by the following agricultural organizations: (i) the Virginia Cotton Growers Association, Inc.; (ii) the Virginia Farm Bureau Federation; and (iii) any other organization within the Commonwealth that is recognized by the U.S. Department of Agriculture as a certified cotton grower organization representing Virginia producers pursuant to guidelines authorized by the Cotton Research and Promotion Act (7 U.S.C. §§ 2101-2118). Each such agricultural organization may nominate producers from each production area. The Governor shall appoint a producer residing in each such production area. If no producer resides in a particular production area, the Governor shall appoint a qualified producer from any other production area. Each agricultural organization shall submit nominations for each available position before the expiration of the member’s term for which the nomination is being provided. If said agricultural organizations fail to provide the nominations, the Governor may appoint other nominees that meet the foregoing criteria. Five members of the Cotton Board shall constitute a quorum.

History. 1997, c. 873, § 3.1-1093; 1999, c. 751; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2016, c. 565, cl. 6 provides: “That nothing in this act shall be construed to affect the 2006 referendum of the Cotton Board, which increased the amount of the cotton assessment.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the seventh and eighth sentences.

The 2016 amendments.

The 2016 amendment by c. 565 substituted “Acts of Assembly of 1997” for “1997 Acts of Assembly” in the first sentence; deleted “two or more” following “organization shall submit” and “at least 90 days” preceding “before the expiration” in the next-to-last sentence and deleted “at least 90 days before the expiration date pursuant to this section” preceding “the Governor may appoint” in the last sentence.

§ 3.2-1502. Cotton Board membership terms.

The terms for appointments to the Cotton Board shall be for three years. The Governor shall fill any vacancy occurring before the expiration of any term through appointment of a qualified producer for the unexpired term. If possible, such vacancies shall be filled from the production area from which the vacancy occurred. No person may serve more than two consecutive three-year terms.

History. 1997, c. 873, § 3.1-1094; 1999, c. 751; 2008, c. 860.

§ 3.2-1503. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1503, relating to Cotton Board officers and their compensation, was derived from Acts 1997, c. 873, § 3.1-1095; 2008, c. 860.

§ 3.2-1504. Powers and duties of Cotton Board.

1. The Cotton Board shall have charge of the Virginia Cotton Fund established in the Virginia state treasury.
2. The Cotton Board may expend funds and enter into contracts in order to effectuate the purposes of this chapter.
3. The Cotton Board may cooperate with other state, regional, national, and international organizations in research concerning, education on, and promotion of cotton and may expend moneys from the Virginia Cotton Fund for such purpose.

History. 1997, c. 873, §§ 3.1-1095 to 3.1-1097; 2008, c. 860.

§ 3.2-1505. Referenda.

The Board, upon petition by at least 10 percent of the producers in the Commonwealth as determined by the Commissioner, shall provide for either a referendum on the continuation of the Cotton Board and the assessment on cotton by a maximum of $0.15 per bale. Any referendum held under this section shall be conducted in accordance with this chapter. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1997, c. 873, § 3.1-1089; 2005, c. 326; 2008, c. 860.

§ 3.2-1506. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall, under the regulations adopted by the Board pursuant to § 3.2-112, arrange for the use of any polling places, if necessary.
2. The Commissioner shall, at least 60 days before the date on which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where cotton is produced. The clerk of the court shall post the notice on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall, at least 60 days prior to the holding of any referendum under this chapter, send a notice of the referendum (i) to a newspaper of general circulation in each locality where cotton is produced or (ii) by mail to all persons listed as cotton producers with the Department during the fiscal year preceding the referendum.The notice shall contain the date, hours, voting places, and method of voting in the referendum; the amount of assessment to be collected, the means by which the assessment will be collected, and the general purposes for how the assessment will be used; and the regulations adopted by the Board pursuant to § 3.2-112.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and shall notify, by mail, each member of the Board of the results.

History. 1997, c. 873, §§ 3.1-1085, 3.1-1087; 2008, c. 860; 2010, c. 14.

The 2010 amendments.

The 2010 amendment by c. 14 rewrote the third sentence of subsection B.

§ 3.2-1507. Questions to be printed on ballots.

1. The question to be printed on the ballots used in a referendum authorized in § 3.2-1505 on the continuation of the Cotton Board shall be:Do you favor the continuation of the Cotton Board for the purpose of research, education, and promotion of the growth and use of cotton?
2. The question to be printed on the ballots used in a referendum authorized in § 3.2-1505 on allowing the Cotton Board to increase the assessment on cotton by a maximum of $0.15 per bale of cotton shall be:Do you favor authorizing the Cotton Board to increase the assessment on cotton by a maximum of $0.15 per bale of cotton ginned in the Commonwealth to support research, education, and promotion of the growth and use of cotton?

History. 1997, c. 873, § 3.1-1091; 2005, c. 326; 2008, c. 860.

§ 3.2-1508. Persons eligible to vote.

Any person in the Commonwealth who produced at least one bale of cotton in the Commonwealth in the fiscal year preceding any referendum held pursuant to this chapter shall be eligible to vote in such referendum, provided that he so certifies on forms prepared by the Commissioner. Completed certification forms shall include the following information: (i) the full name, address, and, if applicable, title of producer if a partner or corporate officer; (ii) the name and locality of each handler of that producer’s cotton in the fiscal year preceding the referendum; and (iii) any other information deemed necessary by the Commissioner to carry out the Commissioner’s duties under this section. Any person who meets the requirements of this section shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in other respects. Such person may vote provided that they are a resident of the Commonwealth or qualified to do business in the Commonwealth. Any person who is not an individual shall vote by its authorized representative. Only one person per farming unit shall be eligible to vote in any referendum.

History. 1997, c. 873, § 3.1-1086; 2008, c. 860.

§ 3.2-1509. Referenda results; action of Governor.

If the Governor finds any separate referendum held pursuant to this chapter in order, that at least 50 percent of those who have met the requirements of § 3.2-1508 have voted, and that a majority of those voting are in opposition to the continuation of the Cotton Board or in opposition to allowing the Cotton Board to increase the assessment on cotton, then the Governor shall so proclaim and upon such proclamation either the Cotton Board will be discontinued or the assessment on cotton will not be increased. If the Governor finds that one-half or more of those voting are in favor of the continuation of the Cotton Board or are in favor of allowing the Cotton Board to increase the assessment on cotton, then the Governor shall so proclaim, and either the Cotton Board shall continue or the Cotton Board shall be authorized to increase the assessment on cotton by a maximum of $0.15 per bale. The cost of conducting a referendum under this section shall be from funds paid into the Virginia Cotton Fund as established in § 3.2-1511.

History. 1997, c. 873, § 3.1-1090; 2005, c. 326; 2008, c. 860.

§ 3.2-1510. Production areas designated.

The following production areas are designated for the purposes of this chapter:

Area I: The Cities of Chesapeake, Virginia Beach, and Suffolk;

Area II: Isle of Wight County;

Area III: Charles City, Henrico, New Kent, Essex, King and Queen, King William, Lancaster, and Northumberland Counties;

Area IV: Surry and Prince George Counties;

Area V: Southampton County;

Area VI: Dinwiddie, Sussex, and Amelia Counties;

Area VII: Brunswick, Greensville, and Campbell Counties; and

Area VIII: Accomack and Northampton Counties.

If the production of cotton occurs in any locality that is not part of a production area as designated in this section, such locality shall be part of the nearest adjacent production area. If there are two or more nearest adjacent production areas, such locality shall be part of that production area that had the lowest cotton production in the most recent calendar year according to the records of the Department.

History. 1997, c. 873, § 3.1-1092; 1999, c. 751; 2008, c. 860.

§ 3.2-1511. Virginia Cotton Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Cotton Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All assessments paid pursuant to § 3.2-1512 shall be paid into the state treasury and credited to the Fund.

The Cotton Board, to help defray the costs of Cotton Board programs, may sell printed materials, rent exhibit space at meetings, and engage in any revenue-producing activity related to research, education, and promotion of the growth and use of cotton. The Cotton Board shall promptly pay the proceeds of any such revenue-producing activities into 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 purpose of carrying out the provisions of this chapter. Expenditures and disbursements from the Fund shall be made by the Cotton Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Cotton Board.

The Auditor of Public Accounts shall audit all the accounts of the Cotton Board as provided in § 30-133.

History. 1997, c. 873, § 3.1-1101; 2008, c. 860.

§ 3.2-1512. Collection and disposition of assessment by handler; reports.

1. Every handler shall collect an assessment of 95 cents ($0.95) per bale from the owner of all cotton that the handler gins for any owner and shall remit such assessment to the Tax Commissioner on or before the last day of the month following the end of each calendar quarter. Such assessment shall be in addition to any moneys collected by the handler as authorized by the Cotton Research and Promotion Act (7 U.S.C. §§ 2101 -2118). The Tax Commissioner shall promptly pay the assessments into the state treasury to the credit of the Virginia Cotton Fund.
2. Every handler shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner along with the assessments submitted pursuant to subsection A, and keep copies of the reports for a period of not less than three years from the time the report was produced. Each report shall consist of information for the calendar quarter preceding the month such report is due and shall include the following: (i) the number of bales that the handler has ginned; (ii) the dollar amount of assessments collected by the handler; (iii) a list of those from whom an assessment has been collected for cotton ginned by the handler; (iv) the dollar amounts of all assessments collected from each owner of cotton ginned by the handler; and (v) any other information deemed necessary by the Tax Commissioner to carry out his duties under this chapter. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner shall provide to the Cotton Board or the Commissioner copies of reports submitted pursuant to this section.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.

History. 1997, c. 873, § 3.1-1098; 1999, c. 751; 2008, c. 860; 2016, c. 565.

Editor’s note.

Acts 2016, c. 565, cl. 6 provides: “That nothing in this act shall be construed to affect the 2006 referendum of the Cotton Board, which increased the amount of the cotton assessment.”

The 2016 amendments.

The 2016 amendment by c. 565 substituted “95 cents ($0.95)” for “85 cents ($0.85)” in subsection A.

§ 3.2-1513. Records to be kept by handler.

Every handler shall maintain the following records for all cotton ginned by the handler for the owner of the cotton:

1. Full name and address of the owner of the cotton;
2. Date the cotton was ginned by the handler for such owner;
3. Number of bales ginned; and
4. Dollar amount of assessment collected by the handler from the owner.The handler shall maintain such records for a period of not less than three years from the time the cotton was ginned. Such records shall be open to the inspection of the Tax Commissioner and shall be established and maintained as required by the Tax Commissioner.

History. 1997, c. 873, § 3.1-1099; 1999, c. 751; 2008, c. 860.

§ 3.2-1514. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler to fail to submit to the Tax Commissioner any report required pursuant to § 3.2-1512 within 60 days after the time such report is required to be submitted.
2. For any handler knowingly to report falsely to the Tax Commissioner any information required pursuant to § 3.2-1512.
3. For any producer knowingly to report falsely to the Commissioner any information required pursuant to § 3.2-1508.

History. 1997, c. 873, § 3.1-1103; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1600. Definitions.

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

“Eggs for consumption” means eggs that are actually consumed in Virginia or sold at a location in Virginia.

“Eggs for use” means eggs that are incorporated into another product at a Virginia location so as to lose their character as eggs.

“Handler” means any person who operates a grading station, a packer, distributor, or other person who purchases, sells, or handles eggs that are used at the wholesale level for consumption in Virginia or, a farmer who packs, processes, or otherwise performs the functions of a handler. The term shall also mean any person in Virginia who purchases eggs, or the liquid equivalent thereof, from anyone other than a registered handler for use or consumption at wholesale in the Commonwealth. The functions of a handler include the sale, distribution, or other disposition of eggs at the wholesale level for use or consumption in Virginia regardless of where the eggs were produced or purchased.

“Registered handler” means any person who has registered with the Tax Commissioner to receive monthly return forms and report the egg tax.

History. 1980, c. 316, § 3.1-796.11:4; 1982, c. 172; 1984, c. 550; 1993, c. 809; 2008, c. 860.

Michie’s Jurisprudence.

For related discussion, see 8B M.J. Food, § 3.

§ 3.2-1601. Egg Board; composition and appointment of members.

The Egg Board is continued within the Department. The Egg Board shall be composed of seven members appointed by the Governor and confirmed in accordance with § 2.2-107 from nominations submitted to him by the Virginia Egg Council or any other organization that represents persons who are involved in the commercial egg industry in the Commonwealth.

The Virginia Egg Council or other organization shall provide nominations for each available position before the expiration of the member’s term for which the nominations are being provided. If the Virginia Egg Council fails to provide nominations for each available position, the Governor may appoint to such available position another person who is involved in the commercial egg industry.

History. 1980, c. 316, § 3.1-796.11:2; 1985, c. 448; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the second paragraph.

The 2016 amendments.

The 2016 amendment by c. 565 inserted “or any other organization that represents persons who are involved in the commercial egg industry in the Commonwealth” in the first paragraph and in the second paragraph inserted “or other organization” and deleted “two or more,” following “shall provide” and “at least 30 days” preceding “before the expiration” in the first sentence, deleted “at least two” following “fails to provide,” and “at least 30 days before the expiration date pursuant to this section” preceding “the Governor may” in the last sentence.

§§ 3.2-1602, 3.2-1603. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former §§ 3.2-1602 and 3.2-1603, relating to Egg Board membership terms and officers and their compensation, were derived from Acts 1980, c. 316, § 3.1-796.11:2; 1985, c. 448; 2008, c. 860.

§ 3.2-1604. Powers and duties of Egg Board.

1. The Egg Board shall have charge of the management and expenditures of the Virginia Egg Fund established in the state treasury.
2. The Egg Board may expend funds to provide for programs of research, education, publicity, advertising, and other promotion of eggs that are the subject of the tax levy; manage the Virginia Egg Fund so as to accumulate a reserve for contingencies; establish an office and employ such technical, professional, and other assistants as may be required; contract for research, publicity, advertising, and other promotional services; and take measures to strengthen and promote the best interest of farmers producing eggs on which the tax has been levied in accordance with the provisions of this chapter.
3. The Egg Board may establish an executive committee and charge it with such powers, duties, and functions as the Egg Board deems proper.
4. The chairman of the Egg Board shall make a report at each annual meeting of the Egg Board and furnish the members of the Egg Board with a statement of the total receipts and disbursements for the year. He shall file a copy of the report with the Commissioner and make copies of the report available for publication.
5. The Auditor of Public Accounts shall audit the accounts of the Egg Board as provided for in § 30-133.

History. 1980, c. 316, § 3.1-796.11:2; 1985, c. 448; 2008, c. 860.

§ 3.2-1605. Virginia Egg Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Egg 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 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 exclusively for the purposes set out in this chapter.

In carrying out the purposes of this article, the Egg Board may cooperate with other state, regional, and national agricultural organizations in research, education, publicity, advertising, and other promotional activities.

Expenditures and disbursements from the Fund shall be made by the Egg Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Egg Board.

History. 1980, c. 316, §§ 3.1-796.11:8, 3.1-796.11:9; 1993, c. 809; 2008, c. 860.

§ 3.2-1606. Levy of tax; regulations; exemptions.

1. There is hereby levied on eggs purchased or sold for use or consumption in the Commonwealth an excise tax of five cents ($0.05) per 30-dozen case or, if the eggs are purchased or sold in other than shell form, 11 cents ($0.11) per 100 pounds of liquid eggs or liquid equivalent. Such excise tax shall be levied only once. The Tax Commissioner, with the advice and consent of the Egg Board, may adopt regulations as are necessary for the interpretation, administration, and enforcement of this tax.
2. The following categories of eggs shall be exempt from the tax levied pursuant to this chapter:
   1. The eggs of any producer selling fewer than 500 cases (15,000 dozen), or the liquid equivalent thereof, per year.
   2. Eggs when sold between registered handlers.The Tax Commissioner shall provide a mechanism for returning taxes paid by exempt persons.

History. 1980, c. 316, § 3.1-796.11:3; 1982, c. 172; 1985, c. 173; 1993, c. 809; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendment by c. 565 inserted subsection A designation and added subsection B.

§ 3.2-1607. Collection and disposition of tax by handler; reports.

1. Every handler shall collect the tax imposed by this chapter from the person who purchases eggs for use or consumption in the Commonwealth and shall remit the tax to the Tax Commissioner by the 20th day of each month.
2. Every handler shall complete reports on forms furnished by the Tax Commissioner and submit the reports to the Tax Commissioner together with the tax submitted pursuant to subsection A. Each report shall include a statement of the gross volume of taxed eggs that have been packed, processed, purchased, sold, or handled by the handler. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner shall provide to the Commissioner or the Egg Board copies of reports submitted pursuant to this section.
3. Every person who engages in business in the Commonwealth as a handler shall register, collect, and pay the tax on all eggs sold or delivered to anyone other than a registered handler for storage, use, or consumption in the Commonwealth. Such handlers shall maintain a certificate of registration, file returns, and perform all other duties required of handlers.
4. Any tax that is not paid when due shall be collected pursuant to § 3.2-1102.
5. Every handler shall keep a complete record of the eggs subject to the provisions of this chapter that are packed, processed, or handled by him and shall preserve such records for a period of not less than three years from the time the eggs were packed, processed, or handled. Such records shall be open for inspection by the Tax Commissioner and shall be established and maintained as required by the Tax Commissioner.

History. 1980, c. 316, § 3.1-796.11:4; 1982, c. 172; 1984, c. 550; 1993, c. 809; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendments by c. 565, in subsection B, substituted “Notwithstanding the provisions of § 58.1-3 , upon request, the” for “A copy of the completed report shall simultaneously be filed with the Egg Board. The,” “shall provide to the Commissioner or” for “may disclose to the duly authorized officer of,” and “copies of reports submitted pursuant to this section” for “tax information relating to the egg tax”; and added subsection E.

§§ 3.2-1608, 3.2-1609. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former §§ 3.2-1608 and 3.2-1609, relating to exemptions from the egg tax and records to be kept by handlers, was derived from Acts 1980, c. 316, §§ 3.1-796.11:5, 3.1-796.11.6; 1993, c. 809; 2008, c. 860.

§ 3.2-1610. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler knowingly to report falsely to the Tax Commissioner the quantity of shell or processed eggs handled by him during any period.
2. For any handler to falsify the records of the eggs processed, packed, or handled by him.
3. For any handler to fail to maintain a complete record of the eggs processed, packed, or handled by him for at least three years from the time such eggs are processed, packed, or handled.

History. 1980, c. 316, § 3.1-796.11:10; 1993, c. 809; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1700. Horse Industry Board; composition and appointment of members; quorum.

The Horse Industry Board, established by the passage of a referendum held pursuant to Chapters 790 and 805 of the Acts of Assembly of 1993, is continued within the Department. The Horse Industry Board shall consist of 12 members representing the horse industry, industry support services, education, and equine health. Four members shall be the presidents of the following industry organizations: the Virginia Horse Council, Inc., the Virginia Thoroughbred Association, the Virginia Horse Shows Association, and the Virginia Quarter Horse Association. Four members shall serve at large, to be appointed by the Governor from nominations made by the remaining statewide horse breed or use organizations. The Governor shall also appoint two members from recommendations submitted by the Virginia horse industry: one shall be a representative of the horse industry support services or professional community (feed manufacturing or sales, pharmaceutical sales, horseshoeing, marketing, veterinary services, etc.) and the other shall be an individual commercially involved in the horse industry (manager, trainer, etc.). Each organization shall submit nominations or recommendations for each available position. If the organizations fail to provide the nominations, the Governor may appoint other nominees that meet the foregoing criteria.

An extension equine specialist from Virginia Polytechnic Institute and State University shall serve as a voting member of the Horse Industry Board. The Commissioner shall serve as a nonvoting member.

Seven members shall constitute a quorum for the transaction of business.

The presidents of the Virginia Horse Council, Inc., the Virginia Thoroughbred Association, the Virginia Horse Shows Association, and the Virginia Quarter Horse Association may each designate in writing a member of his organization as an alternate who may attend meetings in his place and be counted as a member of the Horse Industry Board for the purposes of a quorum and for voting.

History. 2005, cc. 497, 588, § 3.1-22.54; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last two sentences of the first paragraph.

The 2016 amendments.

The 2016 amendment by c. 565 substituted “Acts of Assembly of 1993” for “1993 Acts of Assembly” in the first sentence, deleted “two or more” following “organization shall submit” and “at least 90 days before the expiration of the member’s term for which the nomination or recommendation is being provided” at the end of the next-to-last sentence and deleted “at least 90 days before the expiration date pursuant to this section” following “provide the nominations” in the first paragraph; and substituted “An extension equine” for “The extension horse” in the second paragraph.

§ 3.2-1701. (Effective until July 1, 2022) Horse Industry Board membership terms.

The terms for appointments to the Horse Industry Board shall be for three years, with no at-large member serving more than two consecutive terms.

History. 2005, cc. 497, 588, § 3.1-22.55; 2008, c. 860.

Editor's note.

Acts 2022, cc. 576 and 577, cl. 2 provides: “That, beginning July 1, 2022, the term of any member appointed to the Horse Industry Board pursuant to § 3.2-1701 of the Code of Virginia, as amended by this act, that is set to expire on June 20 shall be extended to June 30 of that year. Thereafter, all appointments shall be for terms of four years.”

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and substituted “four” for “three.”

§ 3.2-1701. (Effective July 1, 2022) Horse Industry Board membership terms.

The terms for appointments to the Horse Industry Board shall be for four years, with no at-large member serving more than two consecutive terms.

History. 2005, cc. 497, 588, § 3.1-22.55; 2008, c. 860; 2022, cc. 576, 577.

§ 3.2-1702. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1702, relating to the Horse Industry Board officers and their compensation, was derived from Acts 2005, cc. 497, 588, § 3.1-22.56; 2008, c. 860.

§ 3.2-1703. Powers and duties of Horse Industry Board.

1. The Horse Industry Board shall be responsible for the promotion and economic development of the equine industry in the Commonwealth. To accomplish this function the Horse Industry Board is authorized to:
   1. Produce economic reports;
   2. Develop a horse industry directory;
   3. Provide funding for educational programs;
   4. Provide funding for research;
   5. Engage in media liaison;
   6. Collect and analyze data on the horse industry;
   7. Disseminate industry-related data; and
   8. Enter into contracts and agreements to accomplish the purposes of this chapter.
2. The chairman of the Horse Industry Board shall make an annual report to the Horse Industry Board including a statement of the total receipts and disbursements for the year and shall file a copy of such report with the Commissioner.

History. 2005, cc. 497, 588, § 3.1-22.57; 2008, c. 860.

§ 3.2-1704. Virginia Horse Industry Promotion and Development Fund established.

1. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Horse Industry Promotion and Development Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All assessments collected pursuant to 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 or be transferred to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose of carrying out the provisions of this chapter.
2. The Auditor of Public Accounts shall audit all the accounts of the Horse Industry Board as provided in § 30-133.
3. Expenditures and disbursements from the Fund shall be made by the Horse Industry Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Horse Industry Board.

History. 2005, cc. 497, 588, § 3.1-22.58; 2008, c. 860.

§ 3.2-1705. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall arrange for and manage any referendum conducted under this chapter.
2. The Commissioner shall, at least 60 days before the date upon which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where those eligible to vote in the referendum reside. The clerk of the circuit court shall post the notice and regulations on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall give general notice of the referendum in a newspaper of general circulation in Richmond, Virginia, and shall send a notice of the referendum to a newspaper of general circulation for each area where members of the horse industry reside, at least 60 days prior to the holding of any referendum under this chapter.The notice shall contain: (i) the date, hours, polling place, and method of voting in such referendum; (ii) the amount of assessment to be collected, means by which such assessment shall be collected, and general purposes for which the assessments will be used; and (iii) the regulations adopted by the Board pursuant to § 3.2-112.
3. The Commissioner shall prepare and distribute in advance of such referendum all necessary ballots, certificates, and supplies required for such referendum and shall, under regulations adopted by the Board, arrange for the use of polling places, if necessary.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and the Board.

History. 2005, cc. 497, 588, § 3.1-22.60; 2008, c. 860.

§ 3.2-1706. Commissioner to maintain referenda results.

The Commissioner shall maintain records of the number of eligible persons who voted in any referendum authorized under this chapter.

History. 2005, cc. 497, 588, § 3.1-22.61; 2008, c. 860.

§ 3.2-1707. Fees to be assessed; State Veterinarian to collect.

A fee of $1.50 shall be assessed on each equine infectious anemia test performed on samples collected in the Commonwealth. Such fees shall be collected by the State Veterinarian for deposit into the Virginia Horse Industry Promotion and Development Fund established by § 3.2-1704.

History. 2005, cc. 497, 588, § 3.1-22.62; 2008, c. 860.

§ 3.2-1708. Referenda.

The Board, upon petition by members of the horse industry representing at least 10 percent of the number of members of the horse industry who voted in the preceding referendum, or as determined by the Commissioner, may provide for a referendum on the continuation of the equine infectious anemia test assessment in accordance with the provisions of §§ 3.2-112 and 3.2-1705. The Board shall not act on such a petition for conducting such a referendum until at least five years have passed since the last referendum. If the Governor determines that a simple majority is not in favor of the assessment, the Board shall hold no new referendum for at least one year after the Governor has declared his findings. The cost of conducting any such referendum under this section shall be from the Virginia Horse Industry Promotion and Development Fund.

History. 2005, cc. 497, 588, § 3.1-22.63; 2008, c. 860.

§ 3.2-1709. Question to be printed on ballots.

The question to be printed on the ballots used in any referendum held under this article shall be as follows:

“Do you favor additional market development, education, publicity, research, and promotion of the Virginia horse industry and continuation of the levy of an assessment of $1.50 on each equine infectious anemia test performed on samples collected in Virginia in accordance with the provisions of the Horse Industry Board law?

_______________ Yes

_______________ No.”

History. 2005, cc. 497, 588, § 3.1-22.64; 2008, c. 860.

§ 3.2-1710. Persons eligible to vote.

Each member of the horse industry who has paid for the administering of the equine infectious anemia test during the previous fiscal year shall be eligible to vote in a referenda, provided that he certifies on forms approved by the Board that he has paid for such a test. Any person meeting such requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in other respects. Any person who is not an individual shall vote by its authorized representative.

History. 2005, cc. 497, 588, § 3.1-22.65; 2008, c. 860.

§ 3.2-1711. Referenda results; action of Governor.

If the Governor finds any referenda in order, and that at least a simple majority of those voting are in opposition to the continuation of the equine infectious anemia test assessment, he shall so proclaim and upon such proclamation the assessment shall be discontinued. If the Governor finds that at least a simple majority of those voting are in favor of the continuation of the assessment, the Governor shall not so proclaim.

History. 2005, cc. 497, 588, § 3.1-22.66; 2008, c. 860.

§ 3.2-1712. Definitions.

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

“Manufactured equine feed” means a commercial feed as defined by § 3.2-4800 that is intended for consumption by horses or other equine.

“Manufacturer” means any person who manufactures equine feed and is licensed to conduct business in the Commonwealth under § 3.2-4803.

History. 2005, cc. 497, 588, § 3.1-22.67; 2008, c. 860.

§ 3.2-1713. Petition for referendum on question of assessment; action of Board and Commissioner; amount of assessment.

The Board, upon a joint petition requesting a referendum being filed with it by at least three of the following: the Virginia Horse Council, Inc., the Virginia Thoroughbred Association, the Virginia Horse Shows Association, the Virginia Quarter Horse Association, the Virginia Farm Bureau Federation, or the Virginia Agribusiness Council, and upon finding that sufficient interest exists among the members of the equine owners in the Commonwealth to justify a referendum, shall authorize the holding of a referendum as set forth in this article.

The Commissioner shall thereupon be fully empowered and directed to hold and conduct a referendum, in accordance with the provisions of §§ 3.2-112 and 3.2-1705, on the question of whether or not equine owners in the Commonwealth are of the opinion that additional market development, education, publicity, research, and promotion of the equine industry are required. If approved in the referendum authorized by this section, an assessment of $3 per ton or $0.075 per 50-pound bag of manufactured equine feed shall be established. The cost of conducting a referendum under this section shall be paid from the Virginia Horse Industry Promotion and Development Fund.

History. 2005, cc. 497, 588, § 3.1-22.68; 2008, c. 860.

§ 3.2-1714. Persons eligible to vote.

Any person who owns an equine in the Commonwealth shall be eligible to vote in a referendum held under this article if he executes and submits to the Commissioner an affidavit on forms and methods approved by the Board verifying Virginia residency, legal voting age, and at least one of the following to confirm equine ownership:

1. Current breed or discipline registration for an equine owned in the Commonwealth.
2. Receipt of a valid Virginia equine infectious anemia test within the last 12 months indicating an ownership interest in an equine.
3. A lease purchase agreement, contract, bill of sale, or other legal document showing current ownership or lease interest in an equine stabled or pastured in the Commonwealth.Completed forms shall include the full name of the person submitting the form along with an associated farm name, if applicable, mailing address, and phone number. Any person who is not an individual shall vote by its authorized representative.

History. 2005, cc. 497, 588, § 3.1-22.69; 2008, c. 860.

§ 3.2-1715. Question to be printed on ballots.

The question to be printed on the ballots used in the initial referendum held pursuant to § 3.2-1713, shall be as follows:

“Do you favor additional market development, education, publicity, research, and promotion of the Virginia equine industry and the levy of an assessment of $3 per ton or $0.075 per 50-pound bag of manufactured equine feed sold in the Commonwealth of Virginia in accordance with the provisions of the Horse Industry Board law?

_______________ Yes

_______________ No.”

History. 2005, cc. 497, 588, § 3.1-22.70; 2008, c. 860.

§ 3.2-1716. Action of Governor if a simple majority of voters favors assessment.

If the Governor finds the referendum in order and that at least a simple majority of those voting are in favor of the assessment for the purpose of conducting additional programs in market development, education, publicity, research, and promotion of the equine industry, he shall so proclaim and an assessment of $3 per ton or $0.075 per 50-pound bag of manufactured equine feed shall be established within 180 days of such proclamation and collected as set forth in this chapter.

History. 2005, cc. 497, 588, § 3.1-22.71; 2008, c. 860.

§ 3.2-1717. Action of Governor if referendum found out of order or less than a simple majority of voters favors assessment.

If the Governor finds the referendum out of order, or that at least a simple majority of those voting are not in favor of the assessment for the purpose of conducting additional programs of market development, education, publicity, research, and promotion of the equine industry, he shall so proclaim and an assessment on manufactured equine feed shall not be established.

History. 2005, cc. 497, 588, § 3.1-22.72; 2008, c. 860.

§ 3.2-1718. Referenda.

If the Governor issues a proclamation under § 3.2-1716, then no other referendum shall be held on the equine industry that was the subject of the proclamation except that after the expiration of five years from the date of the imposition of the assessment on manufactured equine feed, another referendum may be held in the manner herein prescribed to determine whether the assessment shall be continued or adjusted. The Board, upon petition by members of the equine industry representing at least 10 percent of the number of members of the equine industry who voted in the preceding referendum, or as determined by the Commissioner, may provide for a referendum on the continuation or adjustment of the assessment. The Board shall not act on such a petition for conducting such a referendum until at least five years have passed from the time the manufactured equine feed assessment was established or until at least five years have passed since the last referendum.

If the Governor determines that a simple majority is not in favor of the assessment, the Board shall hold no new referendum for at least one year after the Governor has declared his findings, but, at the expiration of one year and upon petition by 10 percent of the members of the Commonwealth’s equine industry that voted in the most recent referendum, the Board may provide for a referendum. The cost of conducting any referendum under this section may be paid from the Virginia Horse Industry Promotion and Development Fund.

History. 2005, cc. 497, 588, § 3.1-22.73; 2008, c. 860.

§ 3.2-1719. Collection and disposition of assessment by manufacturer; report.

1. Every manufacturer shall collect an assessment of $3 per ton or $0.075 per 50-pound bag of manufactured equine feed he sells in the Commonwealth and on any manufactured equine feed he imports for sale in the Commonwealth and shall remit such assessment to the Department annually. The Department shall promptly pay the assessments into the state treasury to the credit of the Virginia Horse Industry Promotion and Development Fund.
2. Every manufacturer shall complete, on forms furnished by the Department, an annual report of the total tonnage of manufactured equine feed he sold and imported into the Commonwealth. Such reports shall be submitted to the Department along with the assessments submitted pursuant to subsection A. The reporting year for manufactured equine feed shall be January 1 through December 31.
3. All assessments collected under this section shall be paid to the Department by February 1 for the preceding calendar year.

History. 2005, cc. 497, 588, § 3.1-22.74; 2008, c. 860.

§ 3.2-1720. Records to be kept by manufacturer.

Any manufacturer who is required to collect the equine feed assessment under this article shall maintain such records as may be necessary or required by the Commissioner to accurately indicate the tonnage of manufactured equine feed that he has sold or imported for sale in the Commonwealth. The manufacturer shall maintain such records for a period of not less than three years from the time the manufactured equine feed was sold. Such records shall be open to the inspection of the Commissioner.

History. 2005, cc. 497, 588, § 3.1-22.75; 2008, c. 860.

§ 3.2-1721. Collection of delinquent assessments; civil action.

Any manufacturer who is required to collect the equine feed assessment under this article and who has not paid the assessment to the Commissioner within 15 working days following the due date of February 1 shall pay to the Commissioner a late fee of 10 percent of the amount due or $50, whichever is greater, in addition to the amount of assessment owed. The appraisal of this late fee shall not prevent the Commissioner from taking other action, as provided for in this chapter. If any person is delinquent in any payment of the money due, then the amount shall be collected by civil action in the name of the Commonwealth at the direction of the Commissioner, and any person adjudged to be in default shall pay the cost of such action. The Attorney General, at the request of the Commissioner, shall institute action in any appropriate court for the collection of any money due, including interest thereon.

History. 2005, cc. 497, 588, § 3.1-22.76; 2008, c. 860.

§ 3.2-1722. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any manufacturer to fail to submit to the Department any report required pursuant to § 3.2-1719 within 60 days after the time such report is due.
2. For any manufacturer knowingly to report falsely to the Department any information required pursuant to this article.

History. 2005, cc. 497, 588, § 3.1-22.77; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1800. Definitions.

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

“Approved seed potatoes” means disease-free potatoes and parts thereof that conform to the standards established by the Potato Board.

“Board” means the Potato Board.

“Handler” means any person who is a processor, dealer, shipper, or exporter who purchases potatoes from a grower, or who acts as the grower’s agent, or any person who holds a produce dealer or commission merchant license from the Department. The term also means any producer who packs, processes, or otherwise performs the functions of a handler pursuant to the provisions of this chapter.

“Jurisdiction” means any locality where potatoes are produced according to the records of the Department.

“Potatoes” means all varieties of potatoes except sweet potatoes.

“Producer” means any person who, in a calendar year, grows a minimum of 40,000 pounds of potatoes in the Commonwealth.

“Seed potatoes” means potatoes and parts thereof intended for the propagation or production of commercial potatoes.

History. 1982, c. 126, §§ 3.1-684.21, 3.1-684.39; 2008, c. 860; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 24 provides: “That all regulations, rules, and standards adopted by the Seed Potato Board pursuant to Chapter 41 (§ 3.2-4100 et seq.) of Title 3.2 of the Code of Virginia that are in effect as of July 1, 2012, shall be administered by the Potato Board and shall remain in full force and effect until the Potato Board adopts regulations pursuant to the 22nd enactment of this act.”

Acts 2012, cc. 803 and 835, cl. 25 provides: “That the gubernatorial appointees to the Potato Board holding office on July 1, 2012, shall continue to serve until such time as the existing terms might expire or become renewed.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and added the definitions for “Approved seed potatoes,” “Board,” and “Seed potatoes.”

§ 3.2-1801. (Effective until July 1, 2022) Potato Board; composition and appointment of members.

The Potato Board, established by the passage of a 1994 referendum held pursuant to Chapter 126 of the Acts of Assembly of 1982, is continued within the Department. The Potato Board shall be composed of seven members appointed by the Governor from nominations by grower organizations, the appointments to be subject to confirmation by the General Assembly. All members of the Potato Board shall be producers of potatoes. Each grower organization shall submit nominations for each available position before the expiration of the member’s term for which the nomination is being provided. If said organizations fail to provide nominations, the Governor may appoint other nominees that meet the criteria provided by this section.

History. 1982, c. 126, § 3.1-684.32; 1985, c. 448; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2022, cc. 576 and 577, cl. 3 provides: “That, beginning July 1, 2022, the term of any member appointed to the Potato Board pursuant to § 3.2-1801 of the Code of Virginia, as amended by this act, that is set to expire on June 20 shall be extended to June 30 of that year. Thereafter, all appointments shall be for terms of four years.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last two sentences.

The 2016 amendments.

The 2016 amendment by c. 565 substituted “Acts of Assembly of 1982” for “1982 Acts of Assembly,” deleted “two or more” following “organization shall submit,” “at least 90 days” following “available position,” and “at least 90 days before such expiration” following “provide nominations.”

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and substituted “by grower organizations, to terms of four years. The appointments shall be subject” for “by grower organizations, the appointments to be subject.”

§ 3.2-1801. (Effective July 1, 2022) Potato Board; composition and appointment of members.

The Potato Board, established by the passage of a 1994 referendum held pursuant to Chapter 126 of the Acts of Assembly of 1982, is continued within the Department. The Potato Board shall be composed of seven members appointed by the Governor from nominations by grower organizations, to terms of four years. The appointments shall be subject to confirmation by the General Assembly. All members of the Potato Board shall be producers of potatoes. Each grower organization shall submit nominations for each available position before the expiration of the member’s term for which the nomination is being provided. If said organizations fail to provide nominations, the Governor may appoint other nominees that meet the criteria provided by this section.

History. 1982, c. 126, § 3.1-684.32; 1985, c. 448; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565; 2022, cc. 576, 577.

§ 3.2-1802. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former § 3.2-1802, relating to the Potato Board membership terms, was derived from Acts 1982, c. 126, § 3.1-684.32; 1985, c. 448; 2008, c. 860; 2012, cc. 803, 835.

§ 3.2-1803. Potato Board meetings and quorum.

The Potato Board shall meet at least once each year prior to the beginning of the seed potato buying season, at the call of the chairman, and whenever the majority of the members so request. A majority of the members shall constitute a quorum.

History. 1982, c. 126, § 3.1-684.32; 1985, c. 448; 2008, c. 860; 2012, cc. 803, 835; 2016, c. 565.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and deleted “Potato” preceding “Board” in subsection A; rewrote subsection B, which read: “Members of the Potato Board may be reimbursed for expenses incurred in connection with their attendance at regular or special meetings of the Potato Board”; and added subsection C.

The 2016 amendments.

The 2016 amendment by c. 565 deleted subsection A pertaining to election of chairman and officers and subsection B pertaining to compensation of board members and deleted the subsection C designation at the beginning.

§ 3.2-1804. Powers and duties of the Potato Board.

1. The Board shall have charge of the management and expenditures of the Virginia Potato Fund established in the state treasury.
2. The Board may expend funds to provide for programs of research, education, publicity, advertising, and other promotion; manage the fund so as to accumulate a reserve for contingencies; establish an office and employ such technical and professional assistants as may be required; contract for research, publicity, advertising and other promotional services; and take all actions as will assist in strengthening and promoting the best interest of producers of potatoes.
3. In carrying out the purposes of this chapter, the Board may cooperate with other state, regional, and national agricultural organizations in research, education, publicity, advertising, and other promotional activities.
4. The Board may establish an executive committee and charge it with those powers, duties, and functions as the Board deems proper.
5. The chairman of the Board shall make an annual report to the Board including a statement of the total receipts and disbursements for the year and shall file a copy of the report and the audit required by § 3.2-1810 with the Commissioner.
6. The Board shall adopt regulations to establish standards for seed potatoes and to carry out the provisions of this chapter and, at the recommendation of the chairman, request that the Commissioner, the Dean of the College of Agriculture and Life Sciences at Virginia Polytechnic Institute and State University, the Chairman of the Certified Seed Board, and the Director of the Eastern Shore Agricultural Research and Extension Center at Painter appoint representatives to advise the Board.

History. 1982, c. 126, §§ 3.1-684.32, 3.1-684.36; 1985, c. 448; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and throughout the section deleted “Potato” preceding “Board”; and added subsection F.

§ 3.2-1805. Referenda.

Upon a petition, or its own motion, or that of an interested person properly made, the Board may hold a referendum on the continuance of the tax. If a petition is not presented to the Board or the Board is not otherwise advised, the tax to support additional research and promotion of potatoes shall continue to be levied and collected as provided for in this article. The cost of conducting any referendum as prescribed in this article shall be paid from funds paid into the Virginia Potato Fund. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1982, c. 126, § 3.1-684.30; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and twice substituted “article” for “chapter.”

§ 3.2-1806. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall arrange for and manage any referendum conducted pursuant to this article.
2. The Commissioner shall, at least 60 days before the referendum is to be held, mail notice to the clerk of the circuit court in each locality where producers are located.The clerk of the circuit court shall post the notice and the regulations on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall give notice of the referendum in a newspaper of general circulation in Richmond, Virginia, and shall send a notice of the referendum to a newspaper of general circulation in each locality where producers are located at least 60 days prior to the holding of any referendum pursuant to the provisions of this article. The notice shall contain the date, hours, voting places, and method of voting in the referendum, the amount of tax to be collected, the means by which the tax shall be collected, the general purposes for how the taxes will be used, and the regulations adopted by the Board hereunder.
3. The Commissioner, with the assistance of the petitioners, shall prepare and distribute in advance of the referendum all necessary ballots and supplies required for the referendum and shall under regulations adopted by the Board and with the assistance of the petitioners and the Extension Service arrange for the necessary polling places.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and the Board.

History. 1982, c. 126, §§ 3.1-684.23, 3.1-684.26, 3.1-684.27; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and in subsection A and in the middle of the last paragraph of subsection B, substituted “article” for “chapter.”

§ 3.2-1807. Question to be printed on ballots.

The question to be printed on the ballots used in a referendum pursuant to this article shall be as follows:

“Do you favor additional research, education, publicity, advertising, and other promotion of potatoes and the continuation of the levy of two cents ($0.02) per 100 pounds in accordance with the provisions of the Board law to support the same?

_______________ Yes

_______________ No.”

History. 1982, c. 126, § 3.1-684.31; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and substituted “article” for “chapter” in the introductory language; and deleted “Potato” preceding “Board” in the question.

§ 3.2-1808. Persons eligible to vote.

Each producer in the Commonwealth who produced 40,000 pounds of potatoes during the year next preceding the date of the referendum held pursuant to this article shall be eligible to vote in the referendum if he certifies to the required production. The certification shall be on forms approved by the Board. Any person meeting these requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in any other respect. Any person who is not an individual shall vote by its authorized representative.

History. 1982, c. 126, § 3.1-684.24; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and substituted “article” for “chapter” in the first sentence.

§ 3.2-1809. Referenda results; action of Governor.

The Governor shall examine all matters relating to the referendum and whether a majority of the producers voting expressed a desire for additional research, education, publicity, advertising, and other means of promotion and continuing the levying of the tax to support them. If the Governor finds the referendum in order and that a majority of those voting are in opposition to the continuation of the levying of the tax on potatoes, he shall so proclaim and upon such proclamation the tax on potatoes shall be discontinued. If the Governor finds that a majority of those voting are in favor of the continuation of the tax on potatoes, the Governor shall not so proclaim.

History. 1982, c. 126, § 3.1-684.28; 2008, c. 860.

§ 3.2-1810. Virginia Potato Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Potato 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 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 the purposes set forth in this chapter.

Expenditures and disbursements from the Fund shall be made by the Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Board.

The Auditor of Public Accounts shall audit all the accounts of the Board as is provided for in § 30-133.

History. 1982, c. 126, §§ 3.1-684.36, 3.1-684.37; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and substituted “article” for “chapter” in the second paragraph; and deleted “Potato” preceding “Board” throughout the last two paragraphs.

§ 3.2-1811. Collection and disposition of tax by handler; reports.

1. Every handler who purchases from a producer shall deduct, from payments made to the producer for any potatoes, a tax of two cents ($0.02) per 100 pounds of potatoes and shall remit the tax to the Commissioner on or before the 20th day of each month. The tax shall be paid to the Commissioner and shall be promptly paid into the state treasury to the credit of the Virginia Potato Fund.
2. Every handler shall complete a report consisting of a statement of the gross volume of potatoes on which the tax was levied that were packed, processed, or handled by the handler and shall file such report with the Commissioner together with the tax submitted pursuant to subsection A. The tax levied on potatoes shall be due by the handler on the same day that the report is due.

History. 1982, c. 126, § 3.1-684.33; 2008, c. 860.

§ 3.2-1812. Collection of delinquent tax; civil action.

The tax imposed under the provisions of this article and unpaid on the date when due shall bear interest at a rate determined in accordance with § 58.1-1812 , from and after the due date until paid. If any person defaults in any payment of the tax or interest thereon, the amount shall be collected by a civil action in the name of the Commonwealth at the relation of the Board and the person adjudged in default shall pay the costs of the proceeding. The Attorney General, at the request of the Commissioner, shall institute an appropriate action for the collection of the amount of any tax past due under this article, including interest thereon.

History. 1982, c. 126, § 3.1-684.35; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and in the first and last sentences, substituted “article” for “board.”

§ 3.2-1813. Records to be kept by handlers.

Every handler shall keep a complete record of the potatoes subject to the provisions of this article that have been packed, processed, or handled by him for a period of time not less than three years from the time the potatoes were packed, processed, or handled. The records shall be open to the inspection of the Commissioner and shall be established and maintained as required by the Commissioner.

History. 1982, c. 126, § 3.1-684.34; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and substituted “article” for “chapter” in the first sentence.

§ 3.2-1814. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler knowingly to report falsely to the Commissioner the quantity of potatoes processed or handled by him.
2. For any handler to fail to keep a complete record of the potatoes processed or handled by him.
3. For any handler to preserve the records for a period of time less than three years from the time such potatoes are processed or handled.

History. 1982, c. 126, § 3.1-684.38; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-1815. Licenses.

The Commissioner shall revoke the produce dealer or commission merchant license of any handler who fails to report, pay the tax, or perform any other duty required of him pursuant to the provisions of this article.

History. 1982, c. 126, § 3.1-684.40; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 22, are identical, and substituted “article” for “chapter” at the end.

§ 3.2-1816. Standards required of seed potatoes.

Any seed potatoes sold, offered for sale, advertised, or shipped in the Commonwealth shall conform to the standards of approved seed potatoes.

History. Code 1950, § 3-228.4; 1950, p. 1029; 1958, c. 94; 1966, cc. 686, 702, § 3.1-288; 2008, c. 860, § 3.2-4105; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4105, has been transferred to this section.

Acts 2012, cc. 803 and 835, cl. 24 provides: “That all regulations, rules, and standards adopted by the Seed Potato Board pursuant to Chapter 41 (§ 3.2-4100 et seq.) of Title 3.2 of the Code of Virginia that are in effect as of July 1, 2012, shall be administered by the Potato Board and shall remain in full force and effect until the Potato Board adopts regulations pursuant to the 22nd enactment of this act.”

§ 3.2-1817. Exempted sales.

Nothing in this article shall prohibit the sale of seed potatoes sold by the grower to a planter who has personal knowledge of the conditions under which the seed potatoes were grown.

History. Code 1950, § 3-228.10; 1950, p. 1030; 1958, c. 94; 1966, c. 702, § 3.1-294; 2008, c. 860, § 3.2-4106; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4106, has been transferred to this section.

§ 3.2-1818. Inspection of potatoes; right of entry; fees; records required.

1. The Commissioner shall inspect any seed potatoes. The Commissioner may enter any place of business, warehouse, common carrier, or other place where seed potatoes may be found for the purpose of an inspection. It is unlawful for any person to interfere with such inspections.
2. The fee for inspection shall not exceed the lesser of the current rate for federal-state inspection of table stock potatoes or the reasonable cost of inspection. The Commissioner shall abate any fee to the extent funds are appropriated from the general fund for seed potato inspection.
3. Bills of lading, invoices, or other records accompanying any shipment of approved seed potatoes shall give the name of the consignee, consignor, and custodian, if any. The Commissioner shall have the right to inspect such records.

History. Code 1950, § 3-228.8; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-292; 1978, c. 540; 1980, c. 308; 2008, c. 860, § 3.2-4107; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4107, has been transferred to this section.

§ 3.2-1819. “Stop sale” order; seizure; condemnation.

1. When the Commissioner finds seed potatoes sold or offered for sale in violation of this article or any regulation hereunder, he may issue a “stop sale” order to the owner or custodian. It is unlawful for anyone to sell any seed potatoes under a “stop sale” order until the Commissioner has evidence that such potatoes will (i) not be used for propagation purposes or (ii) be used outside the Commonwealth. When the Commissioner has such evidence, he shall issue a notice releasing potatoes from the “stop sale” order.
2. Any shipment of seed potatoes in violation of this article shall be subject to seizure on complaint of the Commissioner to the appropriate court in the county or city where the seed potatoes are located. If the court finds the seed potatoes to be in violation and orders condemnation, the owner shall be permitted to post a bond for double the amount of the value of the seed potatoes. Then the owner shall have 10 days from the date of the order of condemnation to denature, destroy, or process the potatoes for other than propagation purposes. If the owner fails to post the bond required or act within the time limit set forth in this subsection, then the court shall order that the seed potatoes be denatured, destroyed, or processed for other than propagation purposes.

History. Code 1950, § 3-228.8; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-292; 1978, c. 540; 1980, c. 308; 2008, c. 860, § 3.2-4108; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4108, has been transferred to this section.

§ 3.2-1820. Commissioner may permit sale of substandard potatoes and experimental varieties.

The Commissioner may permit the sale of seed potatoes that do not meet the standards of approved seed potatoes when he deems necessary. The Commissioner may permit the sale of experimental varieties of potatoes for propagation purposes. He may delegate the authority granted in this section to the Board.

History. Code 1950, § 3-228.9; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-293; 2008, c. 860, § 3.2-4109; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4109, has been transferred to this section.

§ 3.2-1821. Notice; hearings.

1. If the Commissioner finds a violation of this article or of any regulation adopted pursuant to this article, he shall notify the custodian of the seed potatoes in writing, designating a time and place for a hearing, and send a copy of the notice to the owner or shipper. Any party notified shall be given an opportunity to be heard under the regulations adopted pursuant to this article. If it appears after proper hearing that any of the provisions of this article have been violated, the Commissioner may certify the facts to the attorney for the Commonwealth in the county or city where the violation occurred and furnish him with a copy of the results of the inspection duly authenticated and under the oath of the inspector.
2. It shall be the duty of each attorney for the Commonwealth with responsibility for the enforcement of this article, and to whom any violation is reported, to commence proceedings in the appropriate court.

History. Code 1950, § 3-228.11; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-295; 1978, c. 540; 2008, c. 860; § 3.2-4110; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4110, has been transferred to this section.

§ 3.2-1822. Penalties.

Any person violating any provision of this article or any regulation adopted pursuant to this article is guilty of a Class 1 misdemeanor.

History. Code 1950, § 3-228.11; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-295; 1978, c. 540; 2008, c. 860, § 3.2-4111; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, enactments 22 through 26, eliminated the Seed Potato Board and incorporates its duties and responsibilities into the Potato Board. The historical reference to former section 3.2-4111, has been transferred to this section.

§ 3.2-1900. Definitions.

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

“Processor” means any person that cleans, shells, or crushes peanuts.

History. Code 1950, § 3-525.1; 1966, c. 702, § 3.1-647; 1985, c. 448; 2008, c. 860.

§ 3.2-1901. Peanut Board; composition and appointment of members.

The Peanut Board is continued within the Department. The Peanut Board shall consist of eight members representing as nearly as possible each peanut-producing section of the Commonwealth. Such members shall be appointed by the Governor, subject to confirmation by the General Assembly, and each of whom shall be a resident of the Commonwealth and engaged in producing peanuts in the Commonwealth. The Governor shall be guided in his appointments by the recommendations of the Virginia Peanut Growers Association or other organizations representing peanut growers in peanut-producing counties. If the Virginia Peanut Growers Association or other organizations representing peanut growers fail to provide nominations, the Governor may appoint other nominees that meet the foregoing criteria.

History. Code 1950, §§ 3-525.2, 3-525.3; 1966, c. 702, §§ 3.1-648, 3.1-649; 1978, c. 540; 1985, c. 448; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last two sentences.

The 2016 amendments.

The 2016 amendments by c. 565, substituted “eight members” for “nine members” in the second sentence and “organizations representing peanut growers” for “peanut growers’ organizations existing” in the fourth sentence; deleted the former fifth sentence, which read “The Virginia Peanut Growers Association and any other peanut growers’ organization submitting nominations shall submit two or more nominations for each available position at least 90 days before the expiration of the member’s term for which the nomination is being provided”; and substituted “organizations representing peanut growers fail to provide nominations” for “peanut growers’ organizations fail to provide the nominations at least 90 days before the expiration date pursuant to this section” in the last sentence.

§§ 3.2-1902, 3.2-1903. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former §§ 3.2-1902 and 3.2-1903, relating to the Peanut Board membership terms and election of officers and compensation, was derived from Code 1950, §§ 3-525.3, 3-525.4, 3-525.5; 1966, c. 702, §§ 3.1-649, 3.1-650, 3.1-651; 1978, c. 540; 2008, c. 860.

§ 3.2-1904. Powers and duties of Peanut Board.

1. All funds levied and collected under this chapter shall be administered by the Peanut Board.
2. The Peanut Board shall plan and conduct campaigns for education, advertising, publicity, sales promotion, and research as to Virginia peanuts.
3. The Peanut Board may make contracts, expend moneys of the Peanut Fund, and do whatever else may be necessary to effectuate the purposes of this chapter.
4. The Peanut Board may cooperate with other state, regional, and national agricultural and peanut organizations in research, advertising, publicity, education, and other means of promoting the sale and use of peanuts, and may expend moneys of the Peanut Fund for such purposes.
5. The Peanut Board may enter into an agreement with the Federal Commodity Credit Corporation or its designee to collect and remit the specified assessment on all peanuts pledged as collateral for a marketing assistance or price support loan.
6. The chairman shall make a report at the annual meeting of the Peanut Board and furnish the members of the Peanut Board with a statement of the total receipts and disbursements for the year. He shall file a copy of the report and the audit required by § 3.2-1906 with the Commissioner.

History. Code 1950, §§ 3-525.4, 3-525.6 to 3-525.10; 1966, c. 702, §§ 3.1-650, 3.1-652 to 3.1-656; 1978, c. 540; 2008, c. 860; 2010, cc. 7, 37; 2016, c. 565.

The 2010 amendments.

The 2010 amendments by cc. 7 and 37 are identical, and added subsection E and redesignated former subsections E and F as subsections F and G.

The 2016 amendments.

The 2016 amendment by c. 565 deleted subsection F, which read “The Peanut Board may appoint a secretary and other employees as may be necessary at salaries to be fixed by the Peanut Board, subject to the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2. All employees handling money under this chapter shall be required to furnish surety bonds” and renumbered former subsection G as subsection F.

§ 3.2-1905. Levy of excise tax.

Beginning July 1, 2010, and ending July 1, 2026, an excise tax shall be levied at a rate of $0.25 per 100 pounds on all peanuts grown in and sold in the Commonwealth for processing. Peanuts shall not be subject to the tax after the tax has been paid once.

History. Code 1950, § 3-525.11; 1964, c. 609; 1966, c. 702, § 3.1-657; 1973, c. 200; 1983, c. 177; 1995, c. 160; 2008, c. 860; 2010, cc. 7, 37; 2013, cc. 6, 40; 2016, cc. 5, 165; 2021, Sp. Sess. I, cc. 120, 121.

The 2010 amendments.

The 2010 amendments by cc. 7 and 37 are identical, and rewrote the section.

The 2013 amendments.

The 2013 amendments by cc. 6 and 40 are identical, and substituted “2016” for “2013.”

The 2016 amendments.

The 2016 amendments by cc. 5 and 165 are identical, and deleted the first sentence, which read “An excise tax of 15 cents ($0.15) per 100 pounds is levied on all peanuts grown in and sold in the Commonwealth for processing” and substituted “2021, an excise” for “2016, such.”

The 2021 Sp. Sess. I amendments.

The 2021 amendments by Sp. Sess. I, cc. 120 and 121, effective July 1, 2021, are identical, and substituted “July 1, 2026” for “July 1, 2021” and “$0.25” for “$0.30.”

§ 3.2-1906. Peanut Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Peanut 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, after deducting the expense to the Commonwealth of collecting the same, 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 paying the costs of collecting the tax levied on peanuts pursuant to this chapter, the administration of this chapter, including payment for personal services and expenses of agents of the Peanut Board, rent, services, materials, and supplies necessary to effectuate the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the Peanut Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Peanut Board.

The Auditor of Public Accounts shall audit all the accounts of the Peanut Board as is provided for in § 30-133.

History. Code 1950, §§ 3-525.16, 3-525.17; 1966, c. 702, §§ 3.1-662, 3.1-663; 1978, c. 540; 2008, c. 860; 2016, c. 565.

The 2016 amendments.

The 2016 amendment by c. 565 deleted “employees and” following “services and expenses of” in the second paragraph.

§ 3.2-1907. Collection and disposition of tax; reports.

1. Every processor shall collect the tax on all peanuts bought by him and pay it into the Department of Taxation to the credit of the Peanut Fund. The tax collected between July 1 and December 31 of each year shall be paid not later than February 15 of the succeeding year, and the tax collected between January 1 and June 30 shall be paid not later than July 10 of each year.
2. Every processor shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner together with the tax submitted pursuant to subsection A, and keep copies of the reports for a period of not less than three years from the time the report was produced.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner may provide the Peanut Board with a list of assessment payers and amounts paid.

History. Code 1950, § 3-525.12; 1966, c. 702, § 3.1-658; 2008, c. 860; 2010, cc. 7, 37.

The 2010 amendments.

The 2010 amendments by cc. 7 and 37 are identical, and added the second sentence of subsection C.

§ 3.2-1908. Record to be kept by processor.

Every processor shall keep a complete record of the amount of peanuts, subject to tax, bought by him for a period of not less than three years. Such record shall be open to the inspection of the Tax Commissioner and his duly authorized agents.

History. Code 1950, § 3-525.13; 1966, c. 702, § 3.1-659; 2008, c. 860.

§ 3.2-1909. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any processor knowingly to report falsely to the Tax Commissioner the quantity of peanuts subject to tax bought by him during any period.
2. For any processor to falsify the records of the peanuts subject to tax bought by him.

History. Code 1950, § 3-525.18; 1966, c. 702, § 3.1-664; 2008, c. 860.

Cross references.

As to punishment for misdemeanors, see § 18.2-11 .

§ 3.2-1910. Failure to file reports; misdemeanor.

Any processor who fails to file the required reports, or who fails to keep the required records, is guilty of a Class 1 misdemeanor. Each month of such failure is a separate offense.

History. Code 1950, § 3-525.19; 1966, c. 702, § 3.1-665; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-2000. Definitions.

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

“Feeder pig” means a hog not weighing 140 pounds or less.

“Processor” means any person that slaughters hogs commercially, or agent thereof.

“Producer” means any person engaged in the business of raising hogs for sale for slaughter or raising hogs for sale as feeder pigs.

“Slaughter hog” means a hog weighing in excess of 140 pounds.

History. Code 1950, § 3-598.12; 1966, c. 658, § 3.1-763.6; 1985, c. 448; 2008, c. 860.

§ 3.2-2001. Pork Industry Board; composition and appointment of members.

The Pork Industry Board is continued within the Department. The Pork Industry Board shall consist of 12 members appointed by the Governor, subject to confirmation by the General Assembly. Members of the Pork Industry Board shall be selected, as far as possible, so as to give representation to the principal pork-producing areas of Virginia. At least seven of the members shall be pork producers.

History. Code 1950, § 3-598.13; 1966, c. 658, § 3.1-763.7; 1978, c. 540; 1979, c. 72; 1985, c. 448; 2008, c. 860.

§ 3.2-2002. Pork Industry Board membership terms.

Terms for appointments to the Pork Industry Board shall be for four years. The Governor shall fill any vacancy occurring before the expiration of any term through appointment of a qualified person for the unexpired term. No member shall be eligible to be appointed for more than two successive terms.

History. Code 1950, § 3-598.13; 1966, c. 658, § 3.1-763.7; 1978, c. 540; 1979, c. 72; 1985, c. 448; 2008, c. 860.

§ 3.2-2003. Pork Industry Board officers and compensation.

1. The Pork Industry Board shall elect one of its members as chairman and such other officers as deemed appropriate.
2. Members of the Pork Industry Board shall be reimbursed for all actual expenses incurred attending meetings of the Pork Industry Board and any related activities as authorized by the Pork Industry Board.

History. Code 1950, § 3-598.13; 1966, c. 658, § 3.1-763.7; 1978, c. 540; 1979, c. 72; 1985, c. 448; 2008, c. 860.

§ 3.2-2004. Powers and duties of Pork Industry Board.

1. The Pork Industry Board shall administer all funds collected under this chapter.
2. The Pork Industry Board shall plan and conduct programs for education and research relating to the Virginia pork industry, with primary emphasis on programs designed to increase the efficient production of slaughter hogs and feeder pigs in the Commonwealth.
3. The Pork Industry Board may make contracts, expend moneys from the Virginia Pork Industry Fund, and do whatever else may be necessary to effectuate the purposes of this chapter.
4. The Pork Industry Board may cooperate with other state, regional, and national organizations in research, education, and other means for promoting the Virginia pork industry and may expend moneys of the Virginia Pork Industry Fund for such purpose.
5. The Pork Industry Board may appoint a secretary and such other employees as may be necessary at salaries to be fixed by the Pork Industry Board subject to the provisions of the Virginia Personnel Act (§ 2.2-2900 et seq.). All employees of the Pork Industry Board handling money shall be required to furnish surety bonds in an amount to be fixed by the Pork Industry Board.
6. The chairman shall make a report at the annual meeting of the Pork Industry Board and furnish the members of the Pork Industry Board with a statement of the total receipts and disbursements for the year. The chairman shall also file a copy of such report and the audit required by § 3.2-2005 with the Commissioner annually.

History. Code 1950, §§ 3-598.13, 3-598.14; 1966, c. 658, §§ 3.1-763.7, 3.1-763.8; 1978, c. 540; 1979, c. 72; 1985, c. 448; 2008, c. 860.

§ 3.2-2005. Virginia Pork Industry Fund; established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Pork Industry 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 solely for the purposes set forth in this chapter, including paying the costs of collecting the tax levied on hogs pursuant to this chapter, and the administration of this chapter, including payment for personal services, materials, and supplies necessary to effect the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the Pork Industry Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Pork Industry Board.

The Auditor of Public Accounts shall audit all the accounts of the Pork Industry Board as is provided for in § 30-133.

History. Code 1950, § 3-598.17; 1966, c. 658, § 3.1-763.11; 1978, c. 540; 2008, c. 860.

§ 3.2-2006. Levy of excise tax.

An excise tax of 10 cents ($0.10) per head shall be levied on all hogs sold in the Commonwealth for slaughter, and an excise tax of five cents ($0.05) per head shall be levied on all hogs sold in the Commonwealth as feeder pigs. For purposes of this tax, a slaughter hog or feeder pig is sold at the time and place the hog or pig is weighed for purchase and its purchase weight is recorded.

History. Code 1950, § 3-598.15; 1966, c. 658, § 3.1-763.9; 1979, c. 72; 1982, c. 99; 2008, c. 860.

§ 3.2-2007. Collection and disposition of tax; reports.

1. Every processor shall collect the tax on all slaughter hogs purchased by him, other than at a livestock auction market, and remit such tax to the Tax Commissioner to the credit of the Virginia Pork Industry Fund.
2. Every livestock auction market shall collect the tax on all slaughter hogs and feeder pigs bought at a livestock auction market and remit it to the Tax Commissioner to the credit of the Virginia Pork Industry Fund.
3. Every first buyer shall collect the tax on other feeder pig sales and remit it to the Tax Commissioner to the credit of the Virginia Pork Industry Fund.
4. Taxes collected between July 1 and December 31 of each year shall be paid to the Tax Commissioner not later than January 15 of the succeeding year, and taxes collected between January 1 and June 30 shall be paid not later than July 10 of the year in which collected.
5. Every processor, livestock auction market, and other first buyers of feeder pigs shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner together with the taxes submitted pursuant to this section, and keep copies of the reports for a period of not less than three years from the time the report was produced.
6. The Tax Commissioner, after consultation with the Virginia Pork Industry Board, may adopt regulations for the interpretation and enforcement of this tax.
7. Any tax that is not paid when due shall be collected pursuant to § 3.2-1102.

History. Code 1950, § 3-598.15; 1966, c. 658, § 3.1-763.9; 1979, c. 72; 1982, c. 99; 2008, c. 860.

§ 3.2-2008. Records to be kept by processors, livestock auction markets, and other first buyers.

Every processor, livestock auction market, and other first buyers of feeder pigs shall keep a complete record of the number of slaughter hogs and feeder pigs subject to tax purchased by him for at least three years. Such record shall be open to the inspection of the Tax Commissioner.

History. Code 1950, § 3-598.15; 1966, c. 658, § 3.1-763.9; 1979, c. 72; 1982, c. 99; 2008, c. 860.

§ 3.2-2009. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any person knowingly to report falsely the number of slaughter hogs and feeder pigs subject to tax bought or handled by him during any period.
2. For any person to falsify the records of the slaughter hogs and feeder pigs subject to tax bought or handled by him.
3. For any person to fail to file the report, or to fail to keep the records as required by this chapter.

History. Code 1950, § 3-598.18; 1966, c. 658, § 3.1-763.12; 2008, c. 860.

Cross references.

As to punishment for misdemeanors, see § 18.2-11 .

§ 3.2-2100. Definitions.

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

“Handler” means the operator of a stockyard, livestock dealership, slaughterhouse, packing plant, or livestock auction market, or any other person making a purchase from a sheep producer, at the point where the sheep is sold or traded.

“Sheep” means sheep or lambs of all ages.

History. 1995, c. 691, § 3.1-1065; 2008, c. 860.

§ 3.2-2101. (Effective until July 1, 2022) Sheep Industry Board; composition and appointment of members.

The Sheep Industry Board, established by the passage of a referendum held pursuant to Chapter 691 of the 1995 Acts of Assembly, is continued within the Department.

The Sheep Industry Board shall consist of 12 members representing the sheep industry and industry support services. The Governor shall appoint 12 individuals from nominations submitted by the Virginia Sheep Producers Association, Virginia sheep and wool marketing organizations, or other Virginia farm organizations representing sheep producers. One member shall represent the packing/processing/retailing segment of the industry, one shall represent the Virginia Livestock Markets Association, and one shall represent the purebred segment of the industry. The remaining nine members shall be appointed by the Governor as follows in accordance with § 3.2-2110, with no more than one member appointed per locality: three members who reside in the Southwest District; three members who reside in the Valley District; two members who reside in the Northern District; and one member who resides in the South Central District. In addition, the extension sheep specialist from Virginia Polytechnic Institute and State University and the Commissioner shall serve as nonvoting members.

Each association or organization shall submit nominations for each available position before the expiration of the member’s term for which the nomination or recommendation is being provided. If the organizations fail to provide the nominations, the Governor may appoint other nominees that meet the foregoing criteria.

History. 1995, c. 691, §§ 3.1-1074, 3.1-1075; 1996, c. 169; 2004, c. 56; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2022, cc. 576 and 577, cl. 4 provides: “That, beginning July 1, 2022, the term of any member appointed to the Sheep Industry Board pursuant to § 3.2-2101 of the Code of Virginia, as amended by this act, that is set to expire on March 8 shall be extended to June 30 of that year. Thereafter, all appointments shall be for terms of four years.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last paragraph.

The 2016 amendments.

The 2016 amendment by c. 565, deleted “Seven members of the Sheep Industry Board shall constituted a quorum for the transaction of business” at the end of the second paragraph, deleted “two or more” following “shall submit,” “at least 90 days” following “each available position,” and “at least 90 days before the expiration date pursuant to this section” following “provide the nominations.”

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and added “for terms of four years” in the second sentence of the second paragraph; and made stylistic changes.

§ 3.2-2101. (Effective July 1, 2022) Sheep Industry Board; composition and appointment of members.

The Sheep Industry Board, established by the passage of a referendum held pursuant to Chapter 691 of the 1995 Acts of Assembly, is continued within the Department.

The Sheep Industry Board shall consist of 12 members representing the sheep industry and industry support services. The Governor shall appoint 12 individuals from nominations submitted by the Virginia Sheep Producers Association, Virginia sheep and wool marketing organizations, or other Virginia farm organizations representing sheep producers, for terms of four years. One member shall represent the packing/processing/retailing segment of the industry, one shall represent the Virginia Livestock Markets Association, and one shall represent the purebred segment of the industry. The remaining nine members shall be appointed by the Governor as follows in accordance with § 3.2-2110, with no more than one member appointed per locality: three members who reside in the Southwest District; three members who reside in the Valley District; two members who reside in the Northern District; and one member who resides in the South Central District. In addition, the extension sheep specialist from Virginia Polytechnic Institute and State University and the Commissioner shall serve as nonvoting members.

Each association or organization shall submit nominations for each available position before the expiration of the member’s term for which the nomination or recommendation is being provided. If the organizations fail to provide the nominations, the Governor may appoint other nominees that meet the foregoing criteria.

History. 1995, c. 691, §§ 3.1-1074, 3.1-1075; 1996, c. 169; 2004, c. 56; 2008, c. 860; 2011, cc. 691, 714; 2016, c. 565; 2022, cc. 576, 577.

§§ 3.2-2102, 3.2-2103. Repealed by Acts 2016, c. 565, cl. 2.

Editor’s note.

Former §§ 3.2-2102 and 3.2-2103, relating to Sheep Industry Board membership terms and officers and compensation, were derived from Acts 1995, c. 691, § 3.1-1075; 1996, c. 169; 2004, c. 56; 2008, c. 860.

§ 3.2-2104. Powers and duties of Sheep Industry Board.

1. The Sheep Industry Board shall be responsible for the promotion and economic development of the sheep industry in the Commonwealth. To accomplish this function the Sheep Industry Board is authorized to:
   1. Provide funding for predator control;
   2. Produce economic reports;
   3. Develop a sheep industry directory;
   4. Provide funding for educational programs;
   5. Provide funding for research;
   6. Engage in media liaison;
   7. Collect and analyze data on the sheep industry;
   8. Disseminate industry-related data;
   9. Enter into contracts and agreements to accomplish the purposes of this chapter; and
   10. Establish, administer, manage, and make expenditures from the Virginia Sheep Industry Promotion and Development Fund as provided in § 3.2-2111.
2. The Sheep Industry Board may increase the original assessment of 50 cents ($0.50) for each sheep sold within the Commonwealth no more than 10 cents ($0.10) per year, up to a maximum assessment of $1 per head.
3. The chairman of the Sheep Industry Board shall make a report at the annual meeting of the Sheep Industry Board including a statement of the total receipts and disbursements for the year, and shall file a copy of the report with the Commissioner.

History. 1995, c. 691, §§ 3.1-1066, 3.1-1074; 2008, c. 860.

§ 3.2-2105. Referenda.

The Board, upon petition by at least 10 percent of the members of the sheep industry who voted in the preceding referendum or as determined by the Commissioner, may provide for a referendum on the continuation of the Sheep Industry Board and the assessment. The cost of conducting such referendum shall be from funds paid into the Virginia Sheep Industry Promotion and Development Fund as established in § 3.2-2111. Such referendum shall be conducted in the manner provided in this chapter. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1995, c. 691, § 3.1-1072; 2008, c. 860.

§ 3.2-2106. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall manage any referendum conducted under this chapter, and shall, under regulations adopted by the Board, arrange for the use of polling places, if necessary.
2. The Commissioner shall, at least 60 days before the date upon which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where those eligible to vote in the referendum reside. The clerk of the circuit court shall post the notice and regulations on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall also give general notice of the referendum in a newspaper of general circulation in Richmond, Virginia, and shall send a notice of the referendum to a newspaper of general circulation in each area where members of the sheep industry reside, at least 60 days prior to the holding of any referendum under this chapter.The notice shall contain the date, hours, voting places, and methods of voting in the referendum; the amount of assessment to be collected, means by which such assessment will be collected, and general purposes for how the assessments will be used; and the regulations adopted by the Board pursuant to § 3.2-112.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum.
4. The Commissioner shall within 10 days after the referendum, canvass and publicly declare the results of the referendum, and certify the same to the Governor and the Board.

History. 1995, c. 691, §§ 3.1-1069, 3.1-1070; 2008, c. 860.

§ 3.2-2107. Question to be printed on ballots.

The question to be printed on the ballots used in any referendum authorized in § 3.2-2105 on the continuation of the Sheep Industry Board and assessment shall be as follows:

“Do you favor the continuation of the Sheep Industry Board and the continuation of the levy of an assessment of up to $1 per head for all sheep sold within the Commonwealth?

_______________ Yes

_______________ No.”

History. 1995, c. 691, § 3.1-1073; 2008, c. 860.

§ 3.2-2108. Persons eligible to vote.

Each member of the Virginia sheep industry who has sold one or more sheep or 50 or more pounds of wool within the Commonwealth in the year preceding any referendum shall be eligible to vote in the referendum, provided that he certifies that he has conducted such sale. Any person who meets the requirements of this section shall be eligible to vote provided that they are a resident of the Commonwealth or qualified to do business in the Commonwealth. Any person who is not an individual shall vote by its authorized representative.

History. 1995, c. 691, § 3.1-1067; 2008, c. 860.

§ 3.2-2109. Referenda results; action of Governor.

If the Governor finds the referendum in order and that at least a simple majority of those voting are in opposition to the continuation of Sheep Industry Board and the assessment for the purpose of conducting programs in market development, predator control, education, research, and promotion of the sheep industry, he shall so proclaim and upon such proclamation the Sheep Industry Board and the assessment shall be discontinued. If the Governor finds that at least a simple majority of those voting are in favor of the continuation of the Sheep Industry Board and the assessment, he shall not so proclaim.

History. 1995, c. 691, § 3.1-1071; 2008, c. 860.

§ 3.2-2110. Production districts designated.

The following districts are designated for the purposes of this chapter:

Southwest District: Bland, Buchanan, Carroll, Craig, Dickenson, Floyd, Franklin, Giles, Grayson, Henry, Lee, Montgomery, Patrick, Pulaski, Roanoke, Russell, Scott, Smyth, Tazewell, Washington, Wise, and Wythe Counties.

Valley District: Alleghany, Augusta, Bath, Botetourt, Highland, Page, Rockbridge, Rockingham, and Shenandoah Counties.

Northern District: Albemarle, Caroline, Clark, Culpeper, Fairfax, Fauquier, Fluvanna, Fredrick, Goochland, Greene, Hanover, King George, Loudoun, Louisa, Madison, Nelson, Orange, Prince William, Rappahannock, Spotsylvania, Stafford, and Warren Counties.

South Central District: Accomack, Amelia, Amherst, Appomattox, Bedford, Brunswick, Buckingham, Campbell, Charles City, Charlotte, Chesterfield, Cumberland, Dinwiddie, Essex, Gloucester, Greensville, Isle of Wight, James City, King and Queen, King William, Lancaster, Lunenburg, Mathews, Mecklenburg, Middlesex, New Kent, Northampton, Northumberland, Nottoway, Pittsylvania, Powhatan, Prince Edward, Prince George, Richmond, Southampton, Surry, Sussex, Westmoreland, and York Counties; and the Cities of Chesapeake, Suffolk, and Virginia Beach.

History. 1995, c. 691, § 3.1-1075; 1996, c. 169; 2004, c. 56; 2008, c. 860.

§ 3.2-2111. Virginia Sheep Industry Promotion and Development Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Sheep Industry Promotion and Development Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All assessments paid pursuant to § 3.2-2112 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 purpose of carrying out the provisions of this chapter. Expenditures and disbursements from the Fund shall be made by the Sheep Industry Board on warrants issued by the Comptroller upon written request by a duly authorized officer of the Sheep Industry Board.

The Auditor for Public Accounts shall audit all the accounts of the Sheep Industry Board as provided in § 30-133.

History. 1995, c. 691, § 3.1-1076; 2008, c. 860.

§ 3.2-2112. Collection and disposition of assessment by handler; reports.

1. Every handler shall deduct the assessment authorized under this chapter from the proceeds of sale owed by him to the respective owners for all sheep sold in the Commonwealth. Any handler purchasing sheep in the Commonwealth for resale within 10 days shall be exempt from the assessment on the subsequent sale. The handler shall remit the assessment to the Tax Commissioner on or before the last day of the month following the end of each calendar quarter.
2. Every handler shall complete reports on forms furnished by the Tax Commissioner, submit such reports to the Tax Commissioner along with the assessments submitted pursuant to subsection A, and keep copies of the reports for a period of not less than three years from the time the report was produced. Each report shall include a statement of the number of sheep that have been handled; the amount of money that has been collected; and any other information deemed necessary by the Tax Commissioner to carry out his duties under this chapter. Notwithstanding the provisions of § 58.1-3 , upon request, the Tax Commissioner is authorized to provide the Sheep Industry Board with a list of assessment payers and amounts paid.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.

History. 1995, c. 691, §§ 3.1-1077, 3.1-1078; 2008, c. 860.

§ 3.2-2113. Records to be kept by handler.

Every handler shall keep a complete record of the number of sheep subject to payment bought by him for a period of not less than three years. Such records shall be open for inspection by the Tax Commissioner, and shall be established and maintained as required by the Tax Commissioner.

History. 1995, c. 691, § 3.1-1078; 2008, c. 860.

§ 3.2-2114. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler to fail to submit to the Tax Commissioner any report required in this chapter within 60 days from the time such report is required to be submitted.
2. For any handler knowingly to report falsely to the Tax Commissioner the number of taxable sheep handled by him during any period or to falsify the records.

History. 1995, c. 691, § 3.1-1079; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-2200. Definitions.

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

“Country buyer” means any person who buys small grains from a producer.

“Exporter” means any person offering small grains for export sale.

“Handler” means any person who purchases small grains from a producer and any producer who transports and sells his own small grains out of state. Handler also means any processor, dealer, shipper, country buyer, exporter, or any other business entity that purchases small grains from a producer. Handler shall also mean any person buying, accepting for shipment, or otherwise acquiring property in small grains from a producer, and shall include a mortgagee, pledgee, lienor, or other person having a claim against the producer when the actual or constructive possession of such small grains is taken as part payment or in satisfaction of such mortgage, pledge, lien, or claim.

“Processor” means any person who changes the physical form or characteristic of small grains in preparation for sale.

“Producer” means any person who has grown and sold small grains in the Commonwealth in the preceding three years.

“Seedsman” means any person who offers small grains seeds for sale.

“Small grains” means barley, oats, rye, or wheat.

History. 1991, c. 587, §§ 3.1-684.41, 3.1-684.53; 1992, c. 776; 2008, c. 860.

§ 3.2-2201. Small Grains Board; composition and appointment of members.

The Small Grains Board, established by the passage of a referendum held pursuant to Chapter 587 of the 1991 Acts of Assembly, is continued within the Department. The Small Grains Board shall be composed of 11 members appointed by the Governor from nominations by the Virginia Grain Producers Association or other organizations representing small grain producers, the appointments to be subject to confirmation by the General Assembly. The Virginia Grain Producers Association and any other organization submitting nominations shall nominate at least two producers from each production area of small grains. The Governor shall appoint at least one producer from each production area and the membership of the Small Grains Board shall be composed of a majority of producers. The Governor shall appoint one member, if available, from each of the following classifications: seedsman, processor, country buyer, and exporter.

Nominations shall be submitted at least 90 days before the expiration of the member’s term for which the nomination is being provided. If the Virginia Grain Producers Association or any other organization submitting nominations 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 foregoing criteria.

History. 1991, c. 587, § 3.1-684.52; 2008, c. 860; 2011, cc. 691, 714.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and inserted “and any other organization submitting nominations” in the third sentence of the first paragraph and added the last paragraph.

§ 3.2-2202. Small Grains Board membership terms.

The terms for appointments to the Small Grains Board shall be for three years. The Governor shall fill any vacancy occurring before the expiration of any term for the unexpired term. If possible, such vacancies shall be filled from the production area or classification from which the vacancy occurred as described in § 3.2-2210.

History. 1991, c. 587, § 3.1-684.52; 2008, c. 860.

§ 3.2-2203. Small Grains Board officers and compensation.

1. The Small Grains Board shall elect a chairman and such other officers as deemed appropriate.
2. Members of the Small Grains Board shall not receive compensation for attendance at meetings of the Small Grains Board, but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties.

History. 1991, c. 587, § 3.1-684.52; 2008, c. 860.

§ 3.2-2204. Powers and duties of Small Grains Board.

1. The Small Grains Board shall have charge of the management and expenditure of the Virginia Small Grains Fund established in the state treasury.
2. The Small Grains Board may expend funds to provide for programs of market development, education, publicity, research, and the promotion of the sale and use of small grains; to manage the funds so as to accumulate a reserve for contingencies; to establish an office and employ such technical, professional, and other assistants as may be required; and to contract for market development, publicity, research, advertising, and other promotional services.
3. The Small Grains Board may establish an executive committee and charge it with such powers, duties, and functions as deemed proper.
4. The Small Grains Board shall not enter into an agreement with the Federal Commodity Credit Corporation to collect the specified assessment on all small grains pledged as collateral for a commodity credit corporation price support loan or purchase by the Federal Commodity Credit Corporation under its loan or purchase programs.
5. The chairman of the Small Grains Board shall make a report at the annual meeting of the Virginia Grain Producers Association including a statement of the total receipts and disbursements for the year. He shall file a copy of the report with the Commissioner and the members of the Small Grains Board.

History. 1991, c. 587, § 3.1-684.52; 2008, c. 860.

§ 3.2-2205. Referenda.

The Board, upon petition by a group of small grains producers representing at least 10 percent of the number of producers, as determined by the Commissioner, may provide for a referendum on the continuation of the assessment. The Board shall not act on such a petition for conducting such a referendum until at least five years have passed since the last referendum. If the Governor determines that a simple majority is not in favor of the assessment, the Board shall hold no new referendum for at least one year after the Governor has declared his findings, but at the expiration of one year and upon petition by 10 percent of the Commonwealth’s small grains producers that voted in the most recent referendum, the Board may provide for a referendum. The cost of conducting any referendum under this section shall be paid from funds paid into the Virginia Small Grains Fund as defined in § 3.2-2211. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1991, c. 587, §§ 3.1-684.45, 3.1-684.50; 2008, c. 860.

§ 3.2-2206. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall arrange for and manage any referendum conducted pursuant to this chapter, and shall, under regulations adopted by the Board, arrange for the use of polling places if necessary.
2. The Commissioner shall, 60 days before the date upon which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where small grains are produced. The clerk of the circuit court shall post the notice and regulations on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Commissioner shall, at least 60 days prior to the holding of any referendum under this chapter, give general notice of the referendum in a newspaper of general circulation in Richmond, Virginia, and send a notice of the referendum to a newspaper of general circulation for each area where small grains are produced.The notice shall contain the date, hours, polling place, and method of voting in such referendum, the amount of assessment to be collected, the means by which such assessment shall be collected, the general purposes for which the assessments will be used, and the regulations adopted by the Board pursuant to § 3.2-112.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and the Board.

History. 1991, c. 587, §§ 3.1-684.43, 3.1-684.46, 3.1-684.47; 1992, c. 776; 2008, c. 860.

§ 3.2-2207. Question to be printed on ballots.

The question to be printed on the ballots used in any referendum held pursuant to this chapter shall be as follows:

“Do you favor additional market development, education, publicity, research, and the promotion of the sale and use of small grains and continuation of the levy of an assessment of one-half of one percent of the selling price per bushel in accordance with the provisions of the Small Grains Board law?

_______________ Yes

_______________ No.”

History. 1991, c. 587, § 3.1-684.51; 2008, c. 860.

§ 3.2-2208. Persons eligible to vote.

Each producer who sold small grains in two of the past three years next preceding the date of the referendum held pursuant to this chapter shall be eligible to vote in the referendum, provided that he shall certify sale and point of sale on forms approved by the Board. Any person meeting such requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in other respects. Any person who is not an individual shall vote by its authorized representative.

History. 1991, c. 587, § 3.1-684.44; 1992, c. 776; 2008, c. 860.

§ 3.2-2209. Referenda results; action of Governor.

If the Governor finds any referendum in order and that at least a simple majority of those voting are in opposition to the continuation of the assessment on small grains, he shall so proclaim and upon such proclamation the assessment on small grains will be discontinued. If the Governor finds that at least a simple majority of those voting are in favor of the continuation of the assessment on small grains, the Governor shall not so proclaim.

History. 1991, c. 587, § 3.1-684.48; 2008, c. 860.

§ 3.2-2210. Production areas designated.

The following production areas are designated for the purposes of this chapter:

Area I: the Counties of Accomack and Northampton; City of Virginia Beach;

Area II: the Counties of Stafford, King George, Westmoreland, Northumberland, Richmond, and Lancaster;

Area III: the Counties of Spotsylvania, Caroline, Essex, Middlesex, Mathews, Gloucester, King and Queen, King William, and Orange;

Area IV: the Counties of Louisa, Fluvanna, Goochland, Hanover, Henrico, New Kent, Charles City, James City, York, Powhatan, Cumberland, Buckingham, Appomattox, Amelia, Chesterfield, Prince George, Dinwiddie, and Nottoway;

Area V: the Cities of Chesapeake and Suffolk; the Counties of Isle of Wight, Southampton, Surry, and Sussex;

Area VI: the Counties of Greensville, Brunswick, Mecklenburg, Halifax, Charlotte, Lunenburg, Prince Edward, Campbell, and Pittsylvania; and

Area VII: the Counties of Albemarle, Alleghany, Amherst, Arlington, Augusta, Bath, Bedford, Bland, Botetourt, Buchanan, Carroll, Clarke, Craig, Culpeper, Dickenson, Fairfax, Fauquier, Floyd, Franklin, Frederick, Giles, Grayson, Greene, Henry, Highland, Lee, Loudoun, Madison, Montgomery, Nelson, Page, Patrick, Prince William, Pulaski, Rappahannock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington, Wise, and Wythe.

History. 1991, c. 587, § 3.1-684.52; 2008, c. 860.

§ 3.2-2211. Virginia Small Grains Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Small Grains 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 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.

Expenditures and disbursements from the Fund shall be made by the Small Grains Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Small Grains Board.

In carrying out the purposes of this chapter, the Small Grains Board may cooperate with other state, regional, national, and international agricultural organizations in market development, education, publicity, research, and the promotion of the sale and use of small grains. The proceeds from such activities shall be promptly paid into the Virginia Small Grains Fund.

The Auditor of Public Accounts shall audit all the accounts of the Small Grains Board as provided for in § 30-133.

Money from the Fund shall not be diverted or expended for any purpose other than those set forth in this chapter unless authorized by a specific Act of Assembly.

History. 1991, c. 587, §§ 3.1-684.56, 3.1-684.57; 2008, c. 860.

§ 3.2-2212. Collection and disposition of assessment by handler; reports.

1. Every handler shall deduct from payments made to the producer for small grains the amount of the assessment levied thereon and shall remit such assessment to the Tax Commissioner pursuant to this chapter.
2. A report to the Tax Commissioner shall be on forms prescribed and furnished by the Tax Commissioner; shall be a statement of the gross volume of small grains handled by the handler; and shall be filed with the Tax Commissioner covering small grains handled during the preceding period, as set forth by the Tax Commissioner. The Tax Commissioner shall set forth the filing date or dates for reports and assessments and the period to be covered after consultation with the Virginia Small Grains Association and the Small Grains Board. The assessment levied on small grains shall be due and payable by the handler on the same day as the report is due. The assessment shall be paid to the Tax Commissioner and be promptly paid into the state treasury to the credit of the Virginia Small Grains Fund. The Tax Commissioner shall not assess a fee in the collection of the fee assessment. The Tax Commissioner shall provide annually during the first calendar quarter of each year a listing of all handlers who paid an assessment during the previous calendar year.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.

History. 1991, c. 587, § 3.1-684.53; 1992, c. 776; 2008, c. 860.

§ 3.2-2213. Records to be kept by handlers.

Every handler shall keep a complete record of the small grains handled by him for a period of not less than three years from the time the small grains were handled. Such records shall be open to the inspection of the Tax Commissioner, and shall be established and maintained as required by the Tax Commissioner.

History. 1991, c. 587, § 3.1-684.54; 2008, c. 860.

§ 3.2-2214. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler knowingly to report falsely to the Tax Commissioner the quantity of small grains handled by him during any period.
2. For any handler to falsify the records of the small grains handled by him.
3. For any handler to fail to preserve the records of the small grains handled for a period of three years from the time such small grains were handled.

History. 1991, c. 587, § 3.1-684.58; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-2300. Definitions.

“Country buyer” means any person who buys soybeans from a producer.

“Exporter” means any person offering soybeans for export sale.

“Handler” means any processor, dealer, shipper, exporter, or any other business entity that purchases soybeans from a producer. The term shall also mean any person buying, accepting for shipment, or otherwise acquiring property in soybeans from a producer, and shall include a mortgagee, pledgee, lienor, or other person, public or private, having a claim against the producer, when the actual or constructive possession of such soybeans is taken as part payment or in satisfaction of such mortgage, pledge, lien, or claim. The term shall also mean any producer that transports and sells his soybeans out of state.

“Processor” means any person who changes the physical form or characteristic of soybeans for the purpose of preparing them for sale.

“Producer” means any person who grew soybeans in the Commonwealth and sold soybeans during the preceding three years.

“Seedsman” means any person or firm who offers soybean seeds for sale.

History. 1970, c. 431, §§ 3.1-684.2, 3.1-684.13, 3.1-684.14; 1974, c. 297; 1978, c. 540; 1982, c. 603; 1985, c. 448; 1987, c. 476; 1990, c. 183; 1992, c. 124; 2008, c. 860.

§ 3.2-2301. Soybean Board; composition and appointment of members.

The Soybean Board, established by the passage of a referendum held pursuant to Chapter 431 of the 1970 Acts of Assembly, is continued within the Department. The Soybean Board shall be composed of 11 members appointed by the Governor from nominations by the several producer organizations representing soybean producers, the appointments to be subject to confirmation by the General Assembly. The several producer organizations representing soybean producers shall nominate at least two producers from each production area of soybeans. The Governor shall appoint at least one producer from each production area as described in § 3.2-2310, and the membership of the Soybean Board shall always be composed of a majority of producers. The Governor shall appoint one member, if available, from each of the following classifications: seedsman, producer, processor, country buyer, and exporter. Such appointments shall be made from nominations from the several producer organizations representing soybean producers.

Each organization shall submit nominations at least 90 days before the expiration of the member’s term for which the nomination or recommendation is being provided. If the 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 foregoing criteria.

History. 1970, c. 431, § 3.1-684.13; 1974, c. 297; 1978, c. 540; 1985, c. 448; 1987, c. 476; 2008, c. 860; 2011, cc. 691, 714.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last paragraph.

§ 3.2-2302. Soybean Board membership terms.

The terms for appointments to the Soybean Board shall be for three years. The Governor shall fill any vacancy occurring before the expiration of any term for the unexpired term. If possible, vacancies shall be filled from the production area or classification from which the vacancy occurred from nominations as described § 3.2-2301.

History. 1970, c. 431, § 3.1-684.13; 1974, c. 297; 1978, c. 540; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-2303. Soybean Board officers and compensation.

1. The Soybean Board shall elect a chairman and such other officers as deemed appropriate.
2. Members of the Soybean Board shall not receive compensation for attendance at meetings of the Soybean Board, but shall be reimbursed for actual expenses incurred in such attendance.

History. 1970, c. 431, § 3.1-684.13; 1974, c. 297; 1978, c. 540; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-2304. Powers and duties of Soybean Board.

1. The Soybean Board shall have charge of the management and expenditure of the Virginia Soybean Fund established in the state treasury.
2. The Soybean Board may expend funds to provide for programs of research, education, publicity, and the promotion of the sale and use of soybeans; to manage the funds so as to accumulate a reserve for contingencies; to establish an office and employ such technical, professional, and other assistants as may be required; and to contract for research, publicity, advertising, and other promotional services.
3. The Soybean Board may establish an executive committee and charge it with powers, duties, and functions as is deemed proper.
4. The Soybean Board may enter into an agreement with the Federal Commodity Credit Corporation to collect the specified assessment on all soybeans pledged as collateral for a commodity credit corporation price support loan or purchase by the Federal Commodity Credit Corporation under its loan or purchase program.
5. The chairman of the Soybean Board shall make an annual report to the Soybean Board including a statement of the total receipts and disbursements for the year, and shall file a copy of such report with the Commissioner.

History. 1970, c. 431, § 3.1-684.13; 1974, c. 297; 1978, c. 540; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-2305. Referenda.

Every five years from the date of the imposition of the tax assessment on soybeans, another referendum shall be held to determine whether the assessment for research, education, publicity, and promotion of the sale and use of soybeans shall be continued. The Board, upon petition by a group of soybean producers representing at least 33 percent of the Commonwealth’s production, as determined by the Commissioner, may provide for an advisory referendum on the continuation of the assessment. Upon finding that sufficient interest exists among the producers of soybeans in the Commonwealth to justify a referendum, the Board shall authorize the holding of a referendum. The cost of conducting any such referendum as above prescribed shall come from funds paid into the Virginia Soybean Fund. The Board shall adopt regulations governing the conduct of referenda pursuant to § 3.2-112.

History. 1970, c. 431, § 3.1-684.11; 2008, c. 860.

§ 3.2-2306. Management of referenda; Commissioner’s duties; notice.

1. The Commissioner shall arrange for and manage any referendum conducted under this chapter.
2. The Commissioner shall, 60 days before the date upon which a referendum is to be held, mail notice to the clerk of the circuit court in each locality where soybeans are produced. The clerk of the court shall post the notice on the front door or public bulletin board of the courthouse and certify the posting to the Commissioner. The Board shall publish notice of the referendum in each newspaper of general circulation in the counties where the referendum is to be held at least 60 days before the holding of any referendum under this chapter. The notice shall contain the date, hours, and polling places or other ways for voting in such referendum, the amount of the assessment to be collected, the sources thereof, the means by which the sum shall be collected, and the general purposes for how the funds will be used.
3. The Commissioner shall prepare and distribute in advance of the referendum all necessary ballots, certificates, and supplies required for the referendum and shall, under regulations adopted by the Board, arrange for the use of polling places, if necessary.
4. The Commissioner shall, within 10 days after the referendum, canvass and publicly declare the results thereof and certify the same to the Governor and the Board.

History. 1970, c. 431, §§ 3.1-684.4, 3.1-684.7, 3.1-684.8; 2008, c. 860.

§ 3.2-2307. Question to be printed on ballots.

The question to be printed on the ballots used in a referendum held pursuant to this chapter shall be as follows:

“Do you favor additional research, education, publicity and the promotion of the sale and use of soybeans and the continuation of the levy of an assessment of two cents ($0.02) per bushel in accordance with the provisions of the Soybean Board?

_______________ Yes

_______________ No.”

History. 1970, c. 431, § 3.1-684.12; 1982, c. 603; 1990, c. 183; 2008, c. 860.

§ 3.2-2308. Persons eligible to vote.

Each producer who sold soybeans during the past three years next preceding the date of the referendum held pursuant to this chapter shall be eligible to vote in such referendum, provided that he shall so certify on forms that shall be prepared by the Board. Any person meeting such requirements shall be eligible to vote in the referendum, but no person shall be required to be a qualified voter in other respects.

History. 1970, c. 431, § 3.1-684.5; 2008, c. 860.

§ 3.2-2309. Referenda results; action of Governor.

If the Governor finds any referendum in order and that at least 60 percent of those voting are in opposition to the continuation of the assessment on soybeans, he shall so proclaim and upon such proclamation the assessment on soybeans will be discontinued. If the Governor finds that at least 60 percent of those voting are in favor of the continuation of the assessment on soybeans, the Governor shall not so proclaim.

History. 1970, c. 431, §§ 3.1-684.9, 3.1-684.10; 1982, c. 603; 2008, c. 860.

§ 3.2-2310. Production Areas designated.

The following production areas are designated for the purposes of this chapter:

Area I: Accomack and Northampton Counties;

Area II: Stafford, King George, Westmoreland, Northumberland, Richmond, and Lancaster Counties;

Area III: Spotsylvania, Caroline, Essex, Middlesex, Mathews, Gloucester, King and Queen, and King William Counties;

Area IV: Louisa, Fluvanna, Goochland, Hanover, Henrico, New Kent, Charles City, James City, and York Counties;

Area V: the Cities of Virginia Beach, Chesapeake, and Suffolk;

Area VI: Chesterfield, Dinwiddie, Prince George, Surry, Sussex, Isle of Wight, Southampton, Greensville, and Brunswick Counties; and

Area VII: Buckingham, Cumberland, Powhatan, Amelia, Prince Edward, Appomattox, Campbell, Charlotte, Lunenburg, Nottoway, Mecklenburg, Halifax, Pittsylvania, and Henry Counties.

History. 1970, c. 431, § 3.1-684.13; 1974, c. 297; 1978, c. 540; 1985, c. 448; 1987, c. 476; 2008, c. 860.

§ 3.2-2311. Virginia Soybean Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Soybean 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 solely for the purposes set forth in this chapter.

In carrying out the purposes of this chapter, the Soybean Board may cooperate with other state, regional, national, and international agricultural organizations in research, education, publicity, and the promotion of the sale and use of soybeans. The Soybean Board may sell printed materials, rent exhibit space at meetings, and engage in any type of ethical revenue-producing activity to defray the costs of Soybean Board programs. The proceeds from such activities shall be promptly paid into the Virginia Soybean Fund.

Expenditures and disbursements from the Fund shall be made by the Soybean Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Soybean Board.

The Auditor of Public Accounts shall audit all the accounts of the Soybean Board as is provided for in § 30-133.

History. 1970, c. 431, §§ 3.1-684.17, 3.1-684.18; 1978, c. 540; 2008, c. 860.

§ 3.2-2312. Collection and disposition of assessment by handler; reports.

1. Every handler shall deduct from payments made to the producer for soybeans an assessment of two cents ($0.02) per bushel and shall remit such assessment to the Tax Commissioner pursuant to this chapter. The handler shall also deduct from payments made to the producer for soybeans any national assessment that shall be approved under federal law to supersede the state law and shall remit such assessment to the Tax Commissioner pursuant to this chapter. The Tax Commissioner shall provide to the Soybean Board copies of excise tax returns and other information as may be necessary for the Soybean Board to comply with Virginia and federal soybean assessment programs.
2. A report to the Tax Commissioner shall be on forms prescribed and furnished by the Tax Commissioner, and shall be a statement of the gross volume of soybeans handled by the handler and shall be filed with the Tax Commissioner by the date or dates as set forth by the Tax Commissioner covering soybeans handled during the preceding period, as set forth by the Tax Commissioner. The Tax Commissioner shall set forth the filing date or dates for reports and assessments and the period or periods to be covered after consultation with the Virginia Soybean Association and Soybean Board. The assessment levied on soybeans shall be due by the handler on the same day as the report is due. The assessment shall be paid to the Tax Commissioner and be promptly paid into the state treasury to the credit of the Virginia Soybean Fund.
3. Any assessment that is not paid when due shall be collected pursuant to § 3.2-1102.

History. 1970, c. 431, § 3.1-684.14; 1982, c. 603; 1987, c. 476; 1990, c. 183; 1992, c. 124; 2008, c. 860.

§ 3.2-2313. Records to be kept by handlers.

The handler shall keep a complete record of the soybeans handled by him for a period of not less than three years from the time the soybeans were handled. Such records shall be open to the inspection of the Tax Commissioner and shall be established and maintained as required by the Tax Commissioner.

History. 1970, c. 431, § 3.1-684.15; 2008, c. 860.

§ 3.2-2314. Falsification of records; misdemeanor.

It is a Class 1 misdemeanor:

1. For any handler knowingly to report falsely to the Tax Commissioner the quantity of soybeans handled by him during any period.
2. For any handler to falsify the records of the soybeans handled by him.
3. For any handler to fail to preserve the records of the soybeans handled by him for at least three years from the time such soybeans are handled.

History. 1970, c. 431, § 3.1-684.19; 2008, c. 860.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 3.2-2400. Definitions.

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

“Grower” means any person actually engaged in the growing and producing of bright flue-cured tobacco or type 21 dark-fired tobacco.

“Handler” means any manufacturer, dealer, processor, or any other business entity that purchases tobacco directly from the grower.

“Warehouse” means any person authorized by law to conduct auction sales of loose-leaf tobacco.

History. Code 1950, § 3-240; 1966, c. 702, § 3.1-319; 1985, c. 448; 2002, c. 57; 2008, c. 860; 2012, cc. 803, 835.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 29 provides: “That as of July 1, 2012, the Tobacco Board established pursuant to the 27th enactment of this act shall be deemed successor in interest to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board. All right, title, and interest in and to any real or tangible personal property vested in, any debts or liabilities owed to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board, and any enforcement actions taken on behalf of the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board as of July 1, 2012, shall be transferred to and taken as standing in the name of the Tobacco Board.”

Acts 2012, cc. 803 and 835, cl. 30 provides: “That the gubernatorial appointees to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board holding office on July 1, 2012, shall continue to serve on the Tobacco Board established pursuant to the 27th enactment of this act until such time as the existing terms might expire or become renewed. However, any new appointments made after July 1, 2012, shall be made in accordance with the provisions of this act.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and added “or type 21 dark-fired tobacco” in the definition for “Grower.”

§ 3.2-2401. Tobacco Board; composition and appointment of members.

The Tobacco Board is hereby established within the Department. The Tobacco Board shall consist of nine members. Each of the six production areas of flue-cured tobacco set out in § 3.2-2402 shall have a representative on the Tobacco Board, and three members shall represent, as nearly as possible, each important type 21 dark-fired tobacco-producing section in the Commonwealth. The Governor shall appoint members from nominations made by the Virginia Farm Bureau Federation and other organizations representing bright flue-cured tobacco growers or type 21 dark-fired tobacco growers in tobacco-producing counties. Each member shall be a citizen of the Commonwealth and engaged in producing tobacco in the Commonwealth. If the organizations fail to provide nominations, the Governor may appoint other nominees that meet the foregoing criteria.

History. Code 1950, § 3-241; 1966, c. 702, § 3.1-320; 1978, c. 540; 1985, c. 448; 1994, c. 964; 2008, c. 860; 2011, cc. 691, 714; 2012, cc. 803, 835; 2017, cc. 8, 66.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

Acts 2012, cc. 803 and 835, cl. 30 provides: “That the gubernatorial appointees to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board holding office on July 1, 2012, shall continue to serve on the Tobacco Board established pursuant to the 27th enactment of this act until such time as the existing terms might expire or become renewed. However, any new appointments made after July 1, 2012, shall be made in accordance with the provisions of this act.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and added the last two sentences.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and rewrote the first and second sentences, which read: “The Bright Flue Cured Tobacco Board is continued within the Department. The Bright Flue Cured Tobacco Board shall consist of seven members with one member from each production area”; added the third sentence; and deleted “Flue Cured Tobacco Committee of the Virginia” preceding “Farm Bureau Federation” in the fourth sentence.

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and substituted “Virginia Farm Bureau Federation and other organizations representing bright flue-cured tobacco growers or type 21 dark-fired tobacco growers” for “Farm Bureau Federation and other tobacco grower organizations existing” in the fourth sentence; deleted the sixth sentence, which read “Each organization shall submit two or more nominations for each available position at least 90 days before the expiration of the member’s term for which the nomination is being provided”; and substituted “nominations” for “the nominations at least 90 days before the expiration date pursuant to this section” in the last sentence.

§ 3.2-2402. Production areas designated.

The following production areas of flue-cured tobacco are designated for the purposes of this chapter:

Area I — Pittsylvania County;

Area II — Counties of Henry, Patrick, Carroll, Franklin, Bedford, Campbell, and Appomattox;

Area III — Halifax County;

Area IV — Mecklenburg County;

Area V — Counties of Charlotte, Lunenburg, Prince Edward, Nottoway, Cumberland, Amelia, Powhatan, and Chesterfield; and

Area VI — Counties of Brunswick, Dinwiddie, Greensville, Prince George, Sussex, and Southampton and the City of Suffolk.

History. Code 1950, § 3-241; 1966, c. 702, § 3.1-320; 1978, c. 540; 1985, c. 448; 1994, c. 964; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and inserted “of flue-cured tobacco” in the introductory language; in the Area II paragraph, deleted “Pittsylvania” following “Counties of” and inserted “Franklin, Bedford, Campbell, and Appomattox” and made a related change; rewrote the Area IV paragraph, which read: “Counties of Franklin, Bedford, Campbell, Appomattox, and Charlotte; Area V — Mecklenburg County”; redesignated former Area VI paragraph as Area V, and therein inserted “Charlotte”; and redesignated former Area VII paragraph as Area VI.

§§ 3.2-2403, 3.2-2404. Repealed by Acts 2017, cc. 8 and 66, cl. 2.

Editor’s note.

Former §§ 3.2-2403, pertaining to terms for members of the Tobacco Board, derived from Code 1950, § 3-243; 1966, c. 702, § 3.1-322; 2008, c. 860; 2012, cc. 803, 835.

Former § 3.2-2404, pertaining to Tobacco Board officers and compensation, derived from Code 1950, §§ 3-243, 3-244; 1966, c. 702, §§ 3.1-322, 3.1-323; 2008, c. 860; 2012, cc. 803, 835.

§ 3.2-2405. Powers and duties of the Tobacco Board.

1. All funds levied and collected under this chapter shall be administered by the Tobacco Board.
2. The Tobacco Board shall plan and conduct campaigns of education, advertising, publicity, sales promotion, and research to increase the demand for, and the consumption of, bright flue-cured and type 21 dark-fired tobaccos.
3. The Tobacco Board may make contracts, expend moneys of the Bright Flue-Cured Tobacco Promotion Fund and the Dark-Fired Tobacco Promotion Fund, and do whatever else may be necessary to effectuate the purposes of this chapter.
4. The Tobacco Board may cooperate with other state, regional, and national agricultural organizations in research, advertising, publicity, education, and other means of promoting the sale, use, and exportation of bright flue-cured and type 21 dark-fired tobaccos, and expend moneys of the Bright Flue-Cured Tobacco Promotion Fund and the Dark-Fired Tobacco Promotion Fund for such purposes.
5. The Chairman shall make a report at the annual meeting of the Tobacco Board and furnish members with a statement of the total receipts and disbursements for the year. He shall file a copy of such report and the audit required by § 3.2-2407 with the Commissioner.

History. Code 1950, §§ 3-245 to 3-248; 1966, c. 702, §§ 3.1-324 to 3.1-327; 1978, c. 540; 2008, c. 860; 2012, cc. 803, 835; 2017, cc. 8, 66.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and deleted “Bright Flue-Cured” preceding “Tobacco Board” throughout the section; substituted “bright flue-cured and type 21 dark-fired tobaccos” for “Virginia bright-flue cured tobacco” in subsection B; inserted “and the Dark-Fired Tobacco Promotion Fund” in subsections C and D; and substituted “bright-flue-cured and type 21 dark-fired tobaccos” for “bright flue-cured tobacco” in subsection D.

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and deleted subsection E, which read “The Tobacco Board may appoint a secretary and such other employees as may be necessary, at salaries to be fixed by the Tobacco Board, subject to the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2. All employees handling money under this chapter shall be required to furnish surety bonds”; redesignated former subsection F as subsection E, and made minor stylistic changes.

§ 3.2-2406. Collection of assessment.

An assessment of 40 cents ($0.40) per 100 pounds shall be collected on all bright flue-cured and type 21 dark-fired tobaccos that are harvested in the Commonwealth and sold by the grower and shall be payable by the grower.

History. Code 1950, § 3-249; 1960, c. 47; 1966, c. 702, § 3.1-328; 1970, c. 408; 1974, c. 74; 1980, c. 87; 1990, c. 523; 2008, c. 860; 2012, cc. 803, 835; 2017, cc. 8, 66.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and substituted “bright flue-cured and type 21 dark-fired tobaccos that are harvested” for “bright flue-cured tobacco that is harvested.”

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and substituted “assessment of 40 cents ($0.40) per 100 pounds shall be collected” for “excise tax of 20 cents ($0.20) per 100 pounds is levied.”

§ 3.2-2407. Bright Flue-Cured Tobacco Promotion Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Bright Flue-Cured Tobacco Promotion Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys levied and collected under this chapter on all bright flue-cured tobacco 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 carrying out the administration and enforcement of this chapter with respect to bright flue-cured tobacco, including the collection of assessments, the payment of personal services and expenses of agents of the Tobacco Board, and the payment of rent, services, materials, and supplies necessary to effectuate the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the Tobacco Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Tobacco Board.

The Auditor of Public Accounts shall audit all the accounts of the Tobacco Board as is provided for in § 30-133.

History. Code 1950, §§ 3-253, 3-254; 1966, c. 702, §§ 3.1-332, 3.1-333; 1978, c. 540; 2008, c. 860; 2012, cc. 803, 835; 2017, cc. 8, 66.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and inserted “on all bright flue-cured tobacco” in the last sentence of the first paragraph; inserted “with respect to bright flue-cured tobacco” near the middle of the second paragraph; and throughout the last two paragraphs, deleted “Bright Flue-Cured” preceding “Tobacco Board.”

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and in the second paragraph, substituted “collection of assessments” for “collection of taxes” and “agents of the Tobacco Board” for “employees and agents of the Tobacco Board.”

§ 3.2-2407.1. Dark-Fired Tobacco Promotion Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Dark-Fired Tobacco Promotion Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys levied and collected under this chapter on type 21 dark-fired tobacco 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 carrying out the administration and enforcement of this chapter with respect to type 21 dark-fired tobacco, including the collection of assessments, the payment of personal services and expenses of agents of the Tobacco Board, and the payment of rent, services, materials, and supplies necessary to effectuate the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the Tobacco Board on warrants issued by the Comptroller upon written request signed by a duly authorized officer of the Tobacco Board.

The Auditor of Public Accounts shall audit all the accounts of the Tobacco Board as is provided for in § 30-133.

History. 2012, cc. 803, 835; 2017, cc. 8, 66.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 27, enacted this section.

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, and in the second paragraph, substituted “collection of assessments” for “collection of taxes” and “agents of the Tobacco Board” for “employees and agents of the Tobacco Board.”

§ 3.2-2408. Collection and disposition of tax; reports.

Every grower shall pay the excise taxes on bright flue-cured and all type 21 dark-fired tobacco to the warehouse or handler where and when the tobacco is first sold. Each warehouse or handler is designated an agent of the Department for the purpose of collecting such excise tax. The tax shall be paid to the Department, to the credit of the Tobacco Board, on or before the tenth day of the month following its collection. Taxes paid on bright flue-cured tobacco shall be promptly paid into the state treasury to the credit of the Bright Flue-Cured Tobacco Promotion Fund and taxes paid on type 21 dark-fired tobacco shall be promptly paid into the state treasury to the credit of the Dark-Fired Tobacco Promotion Fund.

History. Code 1950, § 3-250; 1966, c. 702, § 3.1-329; 2002, c. 57; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and in the first sentence, substituted “taxes” for “tax” and inserted “and all type 21 dark-fired”; rewrote the third sentence, which formerly read: “The tax shall be paid to the Department, to the credit of the Bright Flue-Cured Tobacco Board, on or before the 10th day of the month following its collection, and promptly paid into the state Treasury to the credit of the Bright Flue-Cured Tobacco Promotion Fund”; and added the last sentence.

§ 3.2-2409. Records to be kept by warehouse and handler.

Each warehouse or handler shall keep a complete record of the excise tax collected by him and shall preserve such record for a period of not less than three years from the time of collection. Such record shall be open to the inspection of the Tobacco Board and its duly authorized agents.

History. Code 1950, § 3-251; 1966, c. 702, § 3.1-330; 2002, c. 57; 2008, c. 860; 2012, cc. 803, 835.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and deleted “Bright Flue-Cured” preceding “Tobacco Board” in the last sentence.

§ 3.2-2410. Collection of unpaid assessment and interest thereon.

If the assessment imposed by this chapter is not paid when due or any funds collected by a warehouse or handler are not remitted to the Tobacco Board as required in this chapter, the amount due shall bear interest at the rate of one percent per month from the due date until payment.

If any person defaults in any payment of the assessment or interest thereon, or fails to remit any funds collected to the Tobacco Board, the amount shall be collected by civil action in the name of the Commonwealth at the relation of the Tobacco Board, and the person adjudged in default shall pay the cost of such action. The Attorney General, at the request of the Tobacco Board, shall institute action for the collection of the amount of any assessment past due under this chapter, including interest thereon.

The Tobacco Board, in its discretion, may waive or remit such interest, or a portion thereof, for good cause shown. In determining whether to waive interest charges or request a civil action, the Board shall consider any history of previous violations, the seriousness of the violation, and the good faith demonstrated in any attempt to achieve compliance with the chapter after notice of the violation.

History. Code 1950, § 3-252; 1966, c. 702, § 3.1-331; 2002, c. 57; 2008, c. 860; 2012, cc. 803, 835; 2017, cc. 8, 66.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 27, are identical, and deleted “Bright Flue-Cured” preceding “Tobacco Board” throughout the section.

The 2017 amendments.

The 2017 amendments by cc. 8 and 66 are identical, substituted “assessment” for “tax” three times and added the third paragraph.

§ 3.2-2411. Violation a misdemeanor.

It is a Class 1 misdemeanor for any person knowingly to violate any provision of this chapter.

History. Code 1950, § 3-255; 1966, c. 702, § 3.1-334; 2008, c. 860.

Cross references.

As to punishment for misdemeanors, see § 18.2-11 .

§§ 3.2-2500 through 3.2-2510.

Repealed by Acts 2012, cc. 803 and 835, cl. 28.

Cross references.

For current provisions pertaining to the Dark-Fired Tobacco Promotion Fund, see § 3.2-2407.1.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 29 provides: “That as of July 1, 2012, the Tobacco Board established pursuant to the 27th enactment of this act shall be deemed successor in interest to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board. All right, title, and interest in and to any real or tangible personal property vested in, any debts or liabilities owed to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board, and any enforcement actions taken on behalf of the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board as of July 1, 2012, shall be transferred to and taken as standing in the name of the Tobacco Board.”

Acts 2012, cc. 803 and 835, cl. 30 provides: “That the gubernatorial appointees to the Dark-Fired Tobacco Board and the Bright Flue-Cured Tobacco Board holding office on July 1, 2012, shall continue to serve on the Tobacco Board established pursuant to the 27th enactment of this act until such time as the existing terms might expire or become renewed. However, any new appointments made after July 1, 2012, shall be made in accordance with the provisions of this act.”

Former § 3.2-2500, pertaining to definitions, derived from Code 1950, § 3-239.1; 1964, c. 306; 1966, c. 702, § 3.1-308; 1985, c. 448; 2008, c. 860. Former § 3.2-2501, pertaining to the Dark-Fired Tobacco Board; composition and appointment of members, derived from Code 1950, § 3-239.2; 1964, c. 306; 1966, c. 702, § 3.1-309; 1978, c. 540; 1985, c. 448; 2008, c. 860; 2011, cc. 691, 714. Former § 3.2-2502, pertaining to Dark-Fired Tobacco Board membership terms, derived from Code 1950, § 3-239.2; 1964, c. 306; 1966, c. 702, § 3.1-309; 1978, c. 540; 1985, c. 448; 2008, c. 860. Former § 3.2-2503, pertaining to Dark-Fired Tobacco Board officers and compensation, derived from Code 1950, § 3-239.2; 1964, c. 306; 1966, c. 702, § 3.1-309; 1978, c. 540; 1985, c. 448; 2008, c. 860. Former § 3.2-2504, pertaining to the powers and duties of Dark-Fired Tobacco Board, derived from Code 1950, §§ 3-239.2, 3-239.3; 1964, c. 306; 1966, c. 702, §§ 3.1-309, 3.1-310; 1978, c. 540; 1985, c. 448; 2008, c. 860. Former § 3.2-2505, pertaining to levy of excise tax, derived from Code 1950, § 3-239.4; 1964, c. 306; 1966, c. 702, § 3.1-311; 1973, c. 261; 1992, c. 375; 2008, c. 860. Former § 3.2-2506, establishing the Virginia Dark-Fired Tobacco Promotion Fund, derived from Code 1950, §§ 3-239.8, 3-239.9; 1964, c. 306; 1966, c. 702, §§ 3.1-315, 3.1-316; 1978, c. 540; 2008, c. 860. Former § 3.2-2507, pertaining to collection and disposition of tax; reports, derived from Code 1950, § 3-239.5; 1964, c. 306; 1966, c. 702, § 3.1-312; 2008, c. 860. Former § 3.2-2508, pertaining to records to be kept by warehouse and handler, derived from Code 1950, § 3-239.6; 1964, c. 306; 1966, c. 702, § 3.1-313; 2008, c. 860. Former § 3.2-2509, pertaining to collection of unpaid excise tax and interest thereon, derived from Code 1950, § 3-239.7; 1964, c. 306; 1966, c. 702, § 3.1-314; 2008, c. 860. Former § 3.2-2510, making a violation of the chapter a misdemeanor, derived from Code 1950, § 3-239.10; 1964, c. 306; 1966, c. 702, § 3.1-317; 2008, c. 860.

§ 3.2-2600. Definitions.

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

“Aquaculture” means the propagation, rearing, enhancement, and harvest of aquatic organisms in controlled or selected environments, conducted in marine, estuarine, brackish, or fresh water.

“Aquaculture facility” means any land, structure, or other appurtenance that is used for aquaculture, including any laboratory, hatchery, pond, raceway, pen, cage, incubator, or other equipment used in aquaculture.

“Aquatic organism” means any species or hybrid of aquatic animal or plant, including fish, shellfish, marine fish, and marine organisms as those terms are defined by § 28.2-100 .

History. 1992, c. 643, § 3.1-73.6; 2008, c. 860.

OPINIONS OF THE ATTORNEY GENERAL

“Aquaculture.” —

Aquaculture not an agricultural operation under the Virginia Right to Farm Act. See opinion of Attorney General to The Honorable Brenda L. Pogge, Member, House of Delegates, 11-127, 2012 Va. AG LEXIS 11 (3/9/12).

§ 3.2-2601. Powers and duties of Commissioner.

The Commissioner shall have the following powers and duties:

1. To provide information and assistance in obtaining permits relating to aquacultural activities;
2. To promote aquaculture including encouraging investment in aquaculture facilities to expand production, processing capacity, and marketing;
3. To work with appropriate state and federal agencies to review, develop, and implement policies and procedures to facilitate aquacultural development;
4. To consult with and assist aquaculture industry groups, aquaculture associations, and academic institutions to develop, maintain, and expand the aquaculture industry; and
5. To develop, support, and implement policies beneficial to Virginia aquaculture.

History. 1992, c. 643, § 3.1-73.7; 2001, c. 320; 2008, c. 860.

§ 3.2-2602. Aquaculture Advisory Board; composition and appointment of members.

1. The Aquaculture Advisory Board is established as an advisory board in the executive branch of state government. The Aquaculture Advisory Board shall advise the Commissioner on policy matters related to aquaculture.
2. The Governor shall appoint the Aquaculture Advisory Board, which shall be composed of seven members who are representative of the interests of the aquaculture industry.The Board shall meet at the call of the Commissioner.

History. 1992, c. 643, § 3.1-73.8; 2008, c. 860.

§ 3.2-2603. (Effective until July 1, 2022) Aquaculture Advisory Board membership terms; compensation.

1. The terms for appointments to the Aquaculture Advisory Board shall be for three years. Appointments to fill vacancies shall be made to fill unexpired terms.
2. Members of the Aquaculture Advisory Board shall receive no compensation for their services but shall receive reimbursement for actual expenses.

History. 1992, c. 643, § 3.1-73.8; 2008, c. 860.

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and in subsection A, substituted “four” for “three” and substituted “shall be for the unexpired term” for “shall be made to fill unexpired terms.”

§ 3.2-2603. (Effective July 1, 2022) Aquaculture Advisory Board membership terms; compensation.

1. The terms for appointments to the Aquaculture Advisory Board shall be for four years. Appointments to fill vacancies shall be for the unexpired term.
2. Members of the Aquaculture Advisory Board shall receive no compensation for their services but shall receive reimbursement for actual expenses.

History. 1992, c. 643, § 3.1-73.8; 2008, c. 860; 2022, cc. 576, 577.

§ 3.2-2700. Marine Products Board; composition and appointment of members.

1. The Marine Products Board is established within the Department.
2. The Marine Products Board shall consist of 11 members appointed by the Governor from among those persons who earn their livelihood from the seafood industry. One member of the Marine Products Board shall be involved in the Virginia menhaden fishery.

History. 1979, c. 274, §§ 28.1-230, 28.1-231, 28.1-237; 1980, c. 712; 1984, cc. 265, 750; 1985, c. 448; 1992, c. 836, § 3.1-684.59; 2008, c. 860.

§ 3.2-2701. (Effective until July 1, 2022) Marine Products Board membership terms.

The terms for appointments to the Marine Products Board shall be for three years. No member shall be eligible for appointment to more than two consecutive terms. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms and made in the same manner as the original appointments.

History. 1979, c. 274, §§ 28.1-230, 28.1-231, 28.1-237; 1980, c. 712; 1984, cc. 265, 750; 1985, c. 448; 1992, c. 836, § 3.1-684.59; 2008, c. 860.

The 2022 amendments.

The 2022 amendments by cc. 576 and 577 are identical, and substituted “four” for “three” in the first sentence.

§ 3.2-2701. (Effective July 1, 2022) Marine Products Board membership terms.

The terms for appointments to the Marine Products Board shall be for four years. No member shall be eligible for appointment to more than two consecutive terms. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms and made in the same manner as the original appointments.

History. 1979, c. 274, §§ 28.1-230, 28.1-231, 28.1-237; 1980, c. 712; 1984, cc. 265, 750; 1985, c. 448; 1992, c. 836, § 3.1-684.59; 2008, c. 860; 2022, cc. 576, 577.

§ 3.2-2702. Marine Products Board officers and compensation.

1. The Marine Products Board shall elect one of its members as chairman, whose term shall be three years or until his successor is elected, and such other officers as deemed appropriate.
2. The Marine Products Board may appoint an executive secretary and employees as may be necessary at salaries to be fixed by the Marine Products Board, subject to the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2.

History. 1979, c. 274, §§ 28.1-230, 28.1-231, 28.1-237; 1980, c. 712; 1984, cc. 265, 750; 1985, c. 448; 1992, c. 836, § 3.1-684.59; 2008, c. 860.

§ 3.2-2703. Compensation; expenses; principal office; place of meetings.

1. The members of the Marine Products Board shall serve without compensation, but shall be eligible for reimbursement for actual expenses incurred in attending meetings of the Marine Products Board.
2. The Marine Products Board’s office shall be located in Tidewater Virginia, and meetings shall be held in seafood-producing areas of the Commonwealth.

History. 1979, c. 274, § 28.1-232; 1992, c. 836, § 3.1-684.60; 2008, c. 860.

§ 3.2-2704. Powers and duties of the Marine Products Board.

1. The Marine Products Board shall: (i) plan and conduct marketing, educational, and promotional campaigns and programs for Virginia marine products; (ii) carry on research and testing programs; and (iii) conduct activities relating to the catching, processing, conservation, and marketing of Virginia marine products.
2. The Marine Products Board may investigate, study, and formulate recommendations regarding regulation, conservation, and management of marine resources of the Commonwealth.
3. The Marine Products Board may make contracts and expend money from the Virginia Marine Products Fund necessary to carry out the purposes of this chapter. The contracts, debts, and liabilities of the Marine Products Board shall not be an obligation of the Commonwealth, but shall be met utilizing the sums paid into the Virginia Marine Products Fund.
4. The Marine Products Board may cooperate with other state, regional, and national seafood organizations in research, advertising, publicity, education, and other means of promoting the sale and use of seafood, and may expend moneys of the Virginia Marine Products Fund for such purposes.

History. 1979, c. 274, §§ 28.1-234 to 28.1-236; 1992, c. 836, §§ 3.1-684.61, 3.1-684.62, 3.1-684.64; 2008, c. 860.

§ 3.2-2705. Virginia Marine Products Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Marine Products Fund, hereinafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys collected and allocated from marine fisheries license fees required under Subtitle II (§ 28.2-200 et seq.) of Title 28.2 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 administered by the Marine Products Board and used exclusively for the administration of this chapter, including payment for personal services and expenses of employees and agents of the Marine Products Board, rent, services, materials and supplies.

Expenditures and disbursements from the Fund shall be made by the Marine Products Board on warrants issued by the Comptroller upon written request signed by the duly authorized officer of the Marine Products Board.

The Auditor of Public Accounts shall audit all the accounts of the Marine Products Board as provided in § 30-133.

History. 1979, c. 274, §§ 28.1-233, 28.1-238, 28.1-239; 1986, c. 344; 1992, c. 836, § 3.1-684.63; 2008, c. 860.

§ 3.2-2800. Definitions.

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

“Beekeeper” means any person who keeps and manages bees for profit, and shall include those growers who keep bees for pollinating crops.

“Cross pollination” means the transfer of pollen from the anthers of blossoms to the stigmas of other blossoms of the same crops or a variety of the same crop.

“Pollination contractor” means any person who contracts to supply a means of cross pollinating the blossoms of any specified plant.

“Producer” means any person engaged in the business of raising crops that benefit from cross pollination by honeybees or other pollinating insects.

History. 1977, c. 452, § 3.1-610.23; 2008, c. 860; 2011, cc. 594, 681.

The 2011 amendments.

The 2011 amendments by cc. 594 and 681 are identical, and deleted the definitions for “Regular meeting” and “Special meeting.”

§§ 3.2-2801 through 3.2-2804. Repealed by Acts 2011, cc. 594 and 681, cl. 2.

Editor’s note.

Former §§ 3.2-2801 through 3.2-2804, pertaining to the Plant Pollination Advisory Board, were derived from 1977, c. 452, §§ 3.1-610.22, 3.1-610.24, 3.1-610.25, 3.1-610.26; 1978, c. 267; 1992, c. 121; 2008, c. 860.

§ 3.2-2805. Powers and duties of Commissioner.

The Commissioner shall have the following powers and duties:

1. To receive and dispense funds;
2. To develop and administer a beekeeper assistance program that is designed to assist Virginia beekeepers in maintaining healthy, productive colonies;
3. To enter into contracts for the purpose of developing new or improved markets or marketing methods for bees and bee products and pollination services;
4. To contract for scientific research services and to contract to develop improved pollinating behavior in honeybees and other pollinating insects;
5. To contract for rearing numbers of improved queen bees sufficient for distribution or sale to beekeepers;
6. To enter into agreements with any local, state or national organization or agency engaged in education for the purpose of disseminating information on pollinators and pollination of crops;
7. To rent or purchase office and laboratory space and land as necessary to carry out its duties;
8. To appoint employees, full- or part-time, and to fix their compensation, if any, in accord with the provisions of the Virginia Personnel Act, (§ 2.2-2900 et seq.);
9. To encourage research, education, methods of improvement in apicultural practices, and promotion projects and the award of funds for such projects as deemed necessary or advisable to accomplish the objectives set forth in this chapter; and
10. To report to the Board in the manner and at such times as the Board may prescribe, regarding the receipt and expenditure of funds. The Commissioner shall ensure that funds made available to the Plant Pollination Fund are expended only for the purposes authorized by this chapter.

History. 1977, c. 452, §§ 3.1-610.25, 3.1-610.26:1; 1978, c. 267; 1992, c. 121; 2004, c. 201; 2008, c. 860; 2011, cc. 594, 681.

The 2011 amendments.

The 2011 amendments by cc. 594 and 681 are identical, and in subdivision 2, deleted “in consultation with the Plant Pollination Advisory Board” following “administer”; added subdivision 9 and made a related change; and redesignated former subdivision 9 as subdivision 10, and therein deleted “and the Plant Pollination Advisory Board’s policies, programs, and activities” from the end of the first sentence, and substituted “The Commissioner” for “The Plant Pollination Advisory Board” in the last sentence.

§ 3.2-2806. Plant Pollination Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Plant Pollination Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All moneys derived from appropriations from the general fund of the state treasury, grants of private or government money designated for specified activities authorized pursuant to this chapter; fees for services rendered pursuant to this chapter; payment for products, equipment, or material or any other thing supplied by the Commissioner; payment for educational publications, materials or supplies provided by the Commissioner; and grants, bequests and donations shall be paid into the state treasury and credited to the Fund. All funds collected for or received by the Commissioner 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 Commissioner is further authorized to accept materials, supplies, property, land and personal services contributed from any source. Moneys in the Fund shall be used solely for the administration of this chapter. Expenditures and disbursements from the Fund shall be made by the Commissioner on warrants issued by the Comptroller.

History. 1977, c. 452, § 3.1-610.27; 1978, c. 267; 2008, c. 860; 2011, cc. 594, 681.

The 2011 amendments.

The 2011 amendments by cc. 594 and 681 are identical, and deleted “upon written request signed by a duly authorized officer of the Plant Pollination Advisory Board” from the end of the last sentence.

§ 3.2-2807. Repealed by Acts 2011, cc. 594 and 681, cl. 2.

Editor’s note.

Former § 3.2-2807, pertaining to the administration of the Plant Polination Fund, was derived from Acts 1977, c. 452, § 3.1-610.28; 1978, c. 267; 2008, c. 860.

§ 3.2-2900. Definitions.

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

“Farmers” shall include all producers of agricultural products such as cotton, tobacco, peanuts, soybeans, potatoes, vegetables, fruits, livestock, livestock products, poultry and turkeys, any other agricultural products having domestic and foreign markets, and all nursery, horticultural, or floricultural products.

History. Code 1950, § 3-16.7; 1966, c. 536, § 3.1-22.3; 1968, c. 85; 2008, c. 860.

§ 3.2-2901. Agricultural Council; composition and appointment of members.

The Agricultural Council is continued within the executive branch of state government. The Agricultural Council shall consist of 18 members to be appointed by the Governor. Insofar as practical, 15 members shall be actively engaged in farming and shall be primarily engaged in the production of a different agricultural commodity. The Commissioner, the dean of the College of Agriculture and Life Sciences of Virginia Polytechnic Institute and State University, and the Associate Vice President for Agriculture and Extension of Virginia State University shall serve as members ex officio.

History. Code 1950, § 3-16.8; 1966, c. 536, § 3.1-22.4; 1979, c. 69; 1984, c. 734; 1985, cc. 146, 448; 1992, c. 121; 2004, c. 650; 2008, c. 860.

§ 3.2-2902. Agricultural Council membership terms.

The terms for appointments to the Agricultural Council shall run concurrently with the term of the Governor making the appointment, but vacancies occurring before the expiration of term shall be filled for the unexpired term.

History. Code 1950, § 3-16.8; 1966, c. 536, § 3.1-22.4; 1979, c. 69; 1984, c. 734; 1985, cc. 146, 448; 1992, c. 121; 2004, c. 650; 2008, c. 860.

§ 3.2-2903. Agricultural Council officers and compensation.

1. The Agricultural Council shall elect from its membership a chairman, vice-chairman, and such other officers as it deems appropriate.
2. Members of the Agricultural Council shall be paid their necessary traveling expenses incurred in connection with the performance of their duties. Such compensation and expenses shall be paid from the Virginia Agricultural Foundation Fund.

History. Code 1950, § 3-16.8; 1966, c. 536, § 3.1-22.4; 1979, c. 69; 1984, c. 734; 1985, cc. 146, 448; 1992, c. 121; 2004, c. 650; 2008, c. 860.

§ 3.2-2904. Powers and duties of the Agricultural Council.

1. The Agricultural Council shall have charge of the management and expenditure of the Virginia Agricultural Foundation Fund. The Agricultural Council may expend funds to provide for programs of agricultural research and education and agricultural services; manage the fund so as to accumulate a reserve for contingencies; establish an office and employ such technical, professional, and other assistants as may be required, subject to the provisions of the Virginia Personnel Act (§ 2.2-2900 et seq.); contract for research and other services; and take all such measures as will assist in strengthening and promoting the best interests of agriculture in the Commonwealth.
2. The chairman shall submit an annual report to the members, the Governor, and the General Assembly on or before November 1 of each year. The report shall contain the annual financial statements of the Agricultural Council for the year ending the preceding June 30.

History. Code 1950, § 3-16.8; 1966, c. 536, § 3.1-22.4; 1979, c. 69; 1984, c. 734; 1985, cc. 146, 448; 1992, c. 121; 2004, c. 650; 2008, c. 860.

§ 3.2-2905. Virginia Agricultural Foundation Fund established.

There is hereby established in the state treasury a special nonreverting fund to be designated as the Virginia Agricultural Foundation Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. All transfers made to the Fund under §§ 3.2-3617, 3.2-3710, 3.2-4004, 3.2-4814, 58.1-2259 , and 58.1-2289 , other moneys appropriated thereto, gifts and grants, and interest accruing thereon 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 expended in accordance with the directions of the Agricultural Council and drawn from the state treasury in the manner provided by law.

History. Code 1950, § 3-16.9; 1966, c. 536, § 3.1-22.5; 1970, c. 457; 1976, c. 91; 1994, cc. 577, 649, 740, 743; 2008, c. 860.

§ 3.2-3000. Definitions.

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

“Enology” means those practices and that body of knowledge involved in the production, aging, storing, and packaging of wine.

“Farm winery” or “winery” means an “establishment” as defined in § 4.1-100 .

“Grape grower” means a commercial grower who: (i) sells at least $10,000 worth of grapes annually; or (ii) has planted and maintains at least three acres of vines of a type used for the production of wine.

“Viticulture” means the cultivation and study of grapes and grapevines.

“Wine” means an alcoholic beverage as defined in § 4.1-100 .

“Winegrower” means any person or entity producing wine from approved products grown by that individual.

History. 2004, cc. 89, 319, § 3.1-1064.1; 2008, c. 860.

§ 3.2-3001. Wine Board; purpose; composition and appointment of members; quorum; meetings.

1. The Wine Board is established within the Department. The purpose of the Wine Board is to foster the development of the Virginia wine industry by expanding viticulture and enological research, increasing education, and promoting the production of grapes and wine in the Commonwealth.
2. The Wine Board shall consist of 10 members, nine of whom shall be voting nonlegislative citizen members, to be appointed by the Governor, and the tenth shall be the Commissioner, who shall serve as a nonvoting ex officio member. Nonlegislative citizen members shall be citizens of the Commonwealth and shall be either grape growers or owners or operators of a winery or farm winery in the Commonwealth. The Governor shall make his appointments upon consideration of the recommendations made by any grape grower, an owner or operator of a winery or farm winery, or the following agricultural organizations or their successor organizations: the Virginia Wineries Association, Inc.; the Virginia Vineyards Association, Inc.; the Virginia Farm Bureau; and the Virginia Agribusiness Council. Each entity or person shall submit two or more recommendations for each available position at least 90 days before the expiration of the member’s term for which the recommendation is being provided. If said entities or persons 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 foregoing criteria.
3. A majority of the members of the Wine Board shall constitute a quorum, but a two-thirds vote of the members present shall be required for passage of items taken up by the Wine Board. The Wine Board shall meet at least four times each year. The meetings of the Wine Board shall be held at the call of the chairman or whenever the majority of the members so request.

History. 2004, cc. 89, 319, §§ 3.1-1064.2, 3.1-1064.3; 2008, c. 860; 2011, cc. 691, 714.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and in subsection B, substituted “tenth” for “10th” preceding “shall be the Commissioner” in the first sentence and added the last two sentences.

§ 3.2-3002. Wine Board membership terms; vacancies.

Initial appointments of nonlegislative citizen members to the Wine Board shall be staggered as follows: six nonlegislative citizen members shall be owners or operators of wineries or farm wineries in Virginia, two of whom shall serve for terms of three years, two shall serve for terms of two years, and two shall serve a term of one year; and three nonlegislative citizen members shall be grape growers with no controlling financial interest in a winery or farm winery, one of whom shall serve a term of three years, one shall serve a term of two years, and one shall serve a term of one year. Thereafter, nonlegislative citizen members shall be appointed for a term of four years. The Commissioner shall serve a term coincident with his term of office. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. All members may be reappointed. No nonlegislative citizen member shall serve more than two consecutive four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. Vacancies shall be filled in the same manner as the original appointments.

History. 2004, cc. 89, 319, § 3.1-1064.3; 2008, c. 860.

§ 3.2-3003. Wine Board officers and compensation.

1. The Wine Board shall elect a chairman and other officers as deemed necessary from among its membership.
2. Members of the Wine Board shall receive no compensation for the discharge of their duties but the nonlegislative citizen members shall be reimbursed for reasonable and necessary expenses incurred in the discharge of their duties as provided in §§ 2.2-2813 and 2.2-2825 . Funding for expenses of the nonlegislative citizen members shall be provided from the Virginia Wine Promotion Fund established under § 3.2-3005.

History. 2004, cc. 89, 319, § 3.1-1064.3; 2008, c. 860.

§ 3.2-3004. Powers and duties of the Wine Board.

The Wine Board shall have the following powers and duties:

1. To receive and dispense funds or donations from the Virginia Wine Promotion Fund;
2. To enter into contracts for the purpose of developing new or improved markets or marketing methods for wine and grape products;
3. To contract for research services to improve viticulture and enological practices in Virginia;
4. To enter into agreements with any local, state, or national organization or agency engaged in education for the purpose of disseminating information on wine or other viticulture projects;
5. To enter into contracts with private or public entities for the purpose of developing marketing, advertising and other promotional programs designed to promote the orderly growth of Virginia’s wine industry;
6. To rent or purchase office and laboratory space, land, equipment, and supplies as necessary to carry out its duties;
7. To employ such personnel as may be required to carry out those duties conferred by law;
8. To acquire any licenses or permits necessary for the performance of the powers and duties of the Wine Board;
9. To cooperate with other state, regional, national, and international organizations in research, education, and promotion of the growing of grapes and the production of wine in the Commonwealth and to expend moneys from the Fund for such purposes;
10. To adopt a general statement of policy and procedures; and
11. To receive from the Chairman of the Wine Board an annual report, including a statement of total receipts and disbursements for the year, and file a copy of such report with the Commissioner.

History. 2004, cc. 89, 319, § 3.1-1064.5; 2008, c. 860.

§ 3.2-3005. Virginia Wine Promotion Fund established.

1. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Wine Promotion Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. The Fund shall consist of all moneys appropriated to it by the General Assembly, grants of private or government funds designated for specified activities authorized pursuant to this chapter, fees for services rendered pursuant to this chapter, payments for products, equipment, or material or other goods supplied. All moneys 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 carrying out the provisions 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 duly authorized officer of the Wine Board.
2. The Wine Board shall meet and evaluate proposals from applicants for funding from the Fund. The Wine Board’s final recommendations shall be made by recorded vote. Not less than one-third of the funding allocated by the Wine Board annually, excluding revenue-producing activities engaged in pursuant to § 3.2-3006, shall be expended for projects that advance viticulture and enological research concerning the growing of grapes and the production of wine in Virginia.
3. The Auditor of Public Accounts shall audit all accounts as provided in § 30-133.

History. 2004, cc. 89, 319, § 3.1-1064.6; 2008, c. 860.

Cross references.

As to collection, computation and distribution of tax on wine, see § 4.1-235 .

§ 3.2-3006. Revenue-producing activities of the Wine Board.

To help defray the costs of its program, the Wine Board may: (i) publish materials with printed advertisements; (ii) sell printed materials; (iii) rent exhibit space at meetings or other events; (iv) charge entrance or participation fees; and (v) engage in other revenue-producing activities related to research, education, and promotion of the growing of grapes and the production of wine in Virginia. The Wine Board shall promptly deposit the proceeds of any revenue-producing activities into the Fund. The provisions of Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of Title 2.2 and of Articles 1 (§ 2.2-4300 et seq.), 2 (§ 2.2-4303 et seq.), 3 (§ 2.2-4343 et seq.), and 5 (§ 2.2-4357 et seq.) of Chapter 43 of Title 2.2 shall not apply to contracts for advertising, marketing, or publishing entered into by the Wine Board. The provisions of Articles 4 (§ 2.2-4347 et seq.) and 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 shall apply to such contracts.

History. 2004, cc. 89, 319, § 3.1-1064.7; 2008, c. 860.

§ 3.2-3007. Definitions.

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

“Board” means the Virginia Spirits Board.

“Cooper” means a commercial producer of wooden casks, barrels, and other staved wooden containers who sells at least $10,000 worth of such wooden containers of a type used for the production of spirits.

“Fund” means the Virginia Spirits Promotion Fund.

“Maltster” means a commercial producer of malt who (i) sells at least $10,000 worth of malt annually or (ii) has planted and maintains at least three acres of grains of a type used for the production of spirits.

“Spirits” means the same as that term is defined in § 4.1-100 .

History. 2020, cc. 85, 410.

§ 3.2-3008. Virginia Spirits Board; purpose; composition and appointment of members; quorum; meeting.

1. The Virginia Spirits Board is established within the Department. The purpose of the Board is to foster the development of the Virginia spirits industry by expanding spirits research, increasing education, and promoting the production of ingredients necessary for alcohol distillation and the production of spirits in the Commonwealth.
2. The Board shall consist of 11 members as follows: the Commissioner and the Chief Executive Officer of the Virginia Alcoholic Beverage Control Authority, both of whom shall serve ex officio without voting privileges, or their designees, and nine voting nonlegislative citizen members to be appointed by the Governor, three of whom shall be coopers or maltsters and six of whom shall be owners or operators of a distillery in the Commonwealth. Nonlegislative citizen members shall be citizens of the Commonwealth. The Governor shall make his appointments upon consideration of the recommendations made by any cooper or maltster or any owner or operator of a distillery. Each entity or person shall submit two or more recommendations for each available position at least 90 days before the expiration of the member’s term for which the recommendation is being provided. If such entities or persons 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 foregoing criteria.
3. A majority of the members of the Board shall constitute a quorum, but a two-thirds vote of the members present shall be required for passage of items taken up by the Board. The Board shall meet at least four times each year. The meetings of the Board shall be held at the call of the chairman or whenever the majority of the members so request.

History. 2020, cc. 85, 410.

Editor’s note.

Acts 2020, cc. 85 and 410, cl. 2 provides: “That initial appointments to the Virginia Spirits Board shall be made by the Governor by July 1, 2020 and shall be staggered as follows: two members, who are owners or operators of distilleries in the Commonwealth, shall be appointed for a term to end June 30, 2021; two members, who are owners or operators of distilleries in the Commonwealth, shall be appointed for a term to end June 30, 2022; two members, who are owners or operators of distilleries in the Commonwealth, shall be appointed for a term to end June 30, 2023; one member, who is a cooper or maltster with no controlling financial interest in a distillery, shall be appointed for a term to end June 30, 2021; one member, who is a cooper or maltster with no controlling financial interest in a distillery, shall be appointed for a term to end June 30, 2022; and one member, who is a cooper or maltster with no controlling financial interest in a distillery, shall be appointed for a term to end June 30, 2023.”

§ 3.2-3009. Board membership terms; vacancies.

Following the initial staggering of terms, nonlegislative citizen members shall serve terms of four years, which shall begin on July 1 of the year of the appointment. The Commissioner shall serve a term coincident with his term of office. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. All members may be reappointed. No nonlegislative citizen member shall serve more than two consecutive four-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment. Vacancies shall be filled in the same manner as the original appointments.

History. 2020, cc. 85, 410.

§ 3.2-3010. Board officers and compensation.

1. The Board shall elect a chairman and other officers as deemed necessary from among its membership.
2. Members of the Board shall receive no compensation for the discharge of their duties, but the nonlegislative citizen members shall be reimbursed for reasonable and necessary expenses incurred in the discharge of their duties as provided in §§ 2.2-2813 and 2.2-2825 . Funding for expenses of the nonlegislative citizen members shall be provided from the Virginia Spirits Promotion Fund established under § 3.2-3012.

History. 2020, cc. 85, 410.

§ 3.2-3011. (Effective until July 1, 2022) Powers and duties of the Board.

The Board shall have the power and duty to:

1. Receive and dispense funds or donations from the Virginia Spirits Promotion Fund;
2. Enter into contracts for the purpose of developing new or improved markets or marketing methods for spirits products;
3. Contract for research services to improve farming practices related to the growing of ingredients necessary for alcohol distillation in Virginia;
4. Enter into agreements with any local, state, or national organization or agency engaged in education for the purpose of disseminating information on spirits projects;
5. Enter into contracts with private or public entities for the purpose of developing marketing, advertising, and other promotional programs designed to promote the orderly growth of Virginia’s spirits industry;
6. Rent or purchase office and laboratory space, land, equipment, and supplies as necessary to carry out its duties;
7. Employ such personnel as may be required to carry out those duties conferred by law;
8. Acquire any licenses or permits necessary for the performance of the powers and duties of the Board;
9. Cooperate with other state, regional, national, and international organizations in research, education, and promotion of the growing of ingredients necessary for alcohol production and the production of spirits in the Commonwealth and expend moneys from the Fund for such purposes;
10. Adopt a general statement of policy and procedures; and
11. Receive from the chairman of the Board an annual report, including a statement of total receipts and disbursements for the year, and file a copy of such report with the Commissioner.

History. 2020, cc. 85, 410.

The 2022 amendments.

The 2022 amendments by cc. 84 and 85 are identical, and added subdivision 12; and made stylistic changes.

§ 3.2-3011. (Effective July 1, 2022) Powers and duties of the Board.

The Board shall have the power and duty to:

1. Receive and dispense funds or donations from the Virginia Spirits Promotion Fund;
2. Enter into contracts for the purpose of developing new or improved markets or marketing methods for spirits products;
3. Contract for research services to improve farming practices related to the growing of ingredients necessary for alcohol distillation in Virginia;
4. Enter into agreements with any local, state, or national organization or agency engaged in education for the purpose of disseminating information on spirits projects;
5. Enter into contracts with private or public entities for the purpose of developing marketing, advertising, and other promotional programs designed to promote the orderly growth of Virginia’s spirits industry;
6. Rent or purchase office and laboratory space, land, equipment, and supplies as necessary to carry out its duties;
7. Employ such personnel as may be required to carry out those duties conferred by law;
8. Acquire any licenses or permits necessary for the performance of the powers and duties of the Board;
9. Cooperate with other state, regional, national, and international organizations in research, education, and promotion of the growing of ingredients necessary for alcohol production and the production of spirits in the Commonwealth and expend moneys from the Fund for such purposes;
10. Adopt a general statement of policy and procedures;
11. Receive from the chairman of the Board an annual report, including a statement of total receipts and disbursements for the year, and file a copy of such report with the Commissioner; and
12. Submit an annual report to the Governor and General Assembly by October 1 of each year regarding the Board’s activities and use of moneys in the Virginia Spirits Promotion Fund, including statistics regarding the extent to which use of moneys in the Virginia Spirits Promotion Fund has impacted spirits sales in the Commonwealth, which shall be submitted for publication as a report document as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

History. 2020, cc. 85, 410; 2022, cc. 84, 85.

§ 3.2-3012. (Effective until July 1, 2022) Virginia Spirits Promotion Fund established.

1. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Spirits Promotion Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. The Fund shall consist of all moneys appropriated to it by the General Assembly, grants of private or government funds designated for specified activities authorized pursuant to this chapter, fees for services rendered pursuant to this chapter, and payments for products, equipment, or material or other goods supplied. All moneys 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 carrying out the provisions 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 duly authorized officer of the Board.
2. The Board shall meet and evaluate proposals from applicants for funding from the Fund. The Board’s final recommendations shall be made by recorded vote.
3. The Auditor of Public Accounts shall audit all accounts as provided in § 30-133.

History. 2020, cc. 85, 410.

Editor’s note.

Acts 2020, cc. 85 and 410, cl. 3 provides: “That on or before October 1, 2020, the Virginia Spirits Board, with assistance from the Virginia Alcoholic Beverage Control Authority, shall submit a report to the Department of Agriculture and Consumer Services detailing how the Board plans to fund the Virginia Spirits Promotion Fund after July 1, 2021.”

The 2022 amendments.

The 2022 amendments by cc. 84 and 85 are identical, and inserted “moneys received pursuant to § 4.1-235 ” in subsection A; and made a stylistic change.

§ 3.2-3012. (Effective July 1, 2022) Virginia Spirits Promotion Fund established.

1. There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Spirits Promotion Fund, hereafter referred to as “the Fund.” The Fund shall be established on the books of the Comptroller. The Fund shall consist of all moneys appropriated to it by the General Assembly, moneys received pursuant to § 4.1-235 , grants of private or government funds designated for specified activities authorized pursuant to this chapter, fees for services rendered pursuant to this chapter, and payments for products, equipment, or material or other goods supplied. All moneys 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 carrying out the provisions 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 duly authorized officer of the Board.
2. The Board shall meet and evaluate proposals from applicants for funding from the Fund. The Board’s final recommendations shall be made by recorded vote.
3. The Auditor of Public Accounts shall audit all accounts as provided in § 30-133.

History. 2020, cc. 85, 410; 2022, cc. 84, 85.

§ 3.2-3013. Revenue-producing activities of the Board.

To help defray the costs of its program, the Board may (i) publish materials with printed advertisements; (ii) sell printed materials; (iii) rent exhibit space at meetings or other events; (iv) charge entrance or participation fees; and (v) engage in other revenue-producing activities related to research, education, and promotion of the growing of ingredients necessary for alcohol distillation and the production of spirits in Virginia. The Board shall promptly deposit the proceeds of any revenue-producing activities into the Fund. The provisions of Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of Title 2.2 and of Articles 1 (§ 2.2-4300 et seq.), 2 (§ 2.2-4303 et seq.), 3 (§ 2.2-4343 et seq.), and 5 (§ 2.2-4357 et seq.) of Chapter 43 of Title 2.2 shall not apply to contracts for advertising, marketing, or publishing entered into by the Board. The provisions of Articles 4 (§ 2.2-4347 et seq.) and 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 shall apply to such contracts.

History. 2020, cc. 85, 410.

§ 3.2-3100. Definitions.

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

“Active tobacco producer” means a person actively engaged in planting, growing, harvesting, and marketing of flue-cured or burley tobacco, or who shares in the variable expenses of producing the crop.

“Agreement” means the agreement or agreements between the Commonwealth, as seller of the Tobacco Assets, and the Corporation, as purchaser of the Tobacco Assets. The sale by the Commonwealth of the Tobacco Assets pursuant to any such agreement shall be a true sale and not a borrowing.

“Commission” means the Tobacco Region Revitalization Commission created pursuant to § 3.2-3101.

“Commission Allocation” means 50 percent of the annual amount received under the Master Settlement Agreement by the Commonwealth, or that would have been received but for a sale of such allocation pursuant to an agreement, between the commencing and ending dates specified in the agreement.

“Corporation” means the Tobacco Settlement Financing Corporation as created under state law.

“Endowment” means the Tobacco Indemnification and Community Revitalization Endowment established pursuant to § 3.2-3104.

“Fund” means the Tobacco Indemnification and Community Revitalization Fund established pursuant to § 3.2-3106.

“Master Settlement Agreement” means the settlement agreement and related documents between the Commonwealth and leading United States tobacco product manufacturers dated November 23, 1998, and including the Consent Decree and Final Judgment entered in the Circuit Court of the City of Richmond on February 23, 1999, Chancery Number HJ-2241-4.

“Period of sale” means the time during which a purchaser under an agreement is entitled to receive the Commission Allocation.

“Strategic Plan” means the strategic plan required pursuant to subsection C of § 3.2-3103.

“Tobacco Assets” means all right, title, and interest in and to the portion of the Commission Allocation that may be sold to the Corporation.

History. 1999, cc. 880, 962, § 9-380; 2001, cc. 807, 844, § 3.1-1106; 2002, cc. 482, 488; 2008, c. 860; 2015, cc. 399, 433.

Cross references.

As to powers and duties of the State Inspector General with regard to the Commission, see § 2.2-309.2 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 313 C 3, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 32.1-366 , Code of Virginia, the State Comptroller shall deposit 41.5 percent of the Commonwealth’s allocation of the Master Settlement Agreement with tobacco product manufacturers, as defined in § 3.2-3100, Code of Virginia, to the Virginia Health Care Fund.”

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and in the definition for “Active tobacco producer,” deleted the designator “(i)” preceding “actively” and “and is therefore entitled to share in the revenue derived from marketing the crop; and (ii) who produces such crop on a farm where tobacco was produced for the 1998 crop year, or any subsequent crop year upon which the Commission may determine to base indemnification payments, pursuant to a tobacco farm marketing quota or farm acreage allotment as established under the Agriculture Adjustment Act of 1938 (7 U.S.C. § 1281 et seq.)” at the end of the definition; substituted “Region” for “Indemnification and Community” in the definition for “Commission”; deleted the definitions for “Quota holder” and “Tobacco farmer”; and added the definition for “Strategic Plan.”

§ 3.2-3101. Tobacco Region Revitalization Commission created; purposes.

The Tobacco Region Revitalization Commission is created as a body corporate and a political subdivision of the Commonwealth and as such shall have, and is vested with, all of the politic and corporate powers as are set forth in this chapter. The Commission is established for the purposes of determining the appropriate recipients of moneys in the Tobacco Indemnification and Community Revitalization Fund and causing distribution of such moneys for the purposes provided in this chapter, including using moneys in the Fund to: (i) provide payments to tobacco farmers as compensation for the adverse economic effects resulting from loss of investment in specialized tobacco equipment and barns and lost tobacco production opportunities associated with a decline in quota; and (ii) revitalize tobacco dependent communities. The Commission shall have only those powers enumerated in § 3.2-3103.

History. 1999, cc. 880, 962, § 9-381; 2001, c. 844, § 3.1-1107; 2008, c. 860; 2015, cc. 399, 433.

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and substituted “Region” for “Indemnification and Community” preceding “Revitalization” in the first sentence.

§ 3.2-3102. Membership; terms; vacancies; compensation and expenses; chairman; chairman’s executive summary.

1. The Commission shall be composed of 28 members as follows:
   1. Six members of the House of Delegates appointed by the Speaker of the House of Delegates;
   2. Four members of the Senate appointed by the Senate Committee on Rules;
   3. The Secretary of Commerce and Trade or his designee;
   4. The Secretary of Finance or his designee;
   5. The Secretary of Agriculture and Forestry or his designee;
   6. Five nonlegislative citizen members who shall be active flue-cured or burley tobacco producers or active farmers appointed by the Governor from a list of seven persons provided by the members of the General Assembly appointed to the Commission. Three of the tobacco producers or active farmers shall reside in the Southside region and two shall reside in the Southwest region;
   7. One nonlegislative citizen member who shall be a representative of the Virginia Farm Bureau Federation appointed by the Governor from a list of at least three persons provided by Virginia Farm Bureau Federation; and
   8. Nine members shall be nonlegislative citizens appointed by the Governor. Of the nine nonlegislative citizen members, three shall be appointed by the Governor from a list of six provided by the members of the General Assembly appointed to the Commission.With the exception of the Secretary of Commerce and Trade or his designee, the Secretary of Finance or his designee and the Secretary of Agriculture and Forestry or his designee, all members of the Commission shall reside in the Southside and Southwest regions of the Commonwealth and shall be subject to confirmation by the General Assembly. To the extent feasible, appointments representing the Southside and Southwest regions shall be proportional to the tobacco quota production of each region. Thirteen of the 28 members shall have experience in business, economic development, investment banking, finance, or education.Except as otherwise provided herein, all appointments shall be for terms of four years each. Legislative members, the Secretary of Commerce and Trade, the Secretary of Finance, and the Secretary of Agriculture and Forestry or his designee shall serve terms coincident with their terms of office. No nonlegislative citizen member shall be eligible to serve more than two successive four-year terms. After expiration of a term of three years or less, two additional four-year terms may be served by such member if appointed thereto. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Any appointment to fill a vacancy shall be made in the same manner as the original appointment. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s eligibility for reappointment.
2. The Commission shall appoint from its membership a chairman and a vice-chairman, both of whom shall serve in such capacities at the pleasure of the Commission. The chairman, or in his absence, the vice-chairman, shall preside at all meetings of the Commission. The meetings of the Commission shall be held on the call of the chairman or whenever the majority of the members so request. A majority of members of the Commission serving at any one time shall constitute a quorum for the transaction of business.
3. Legislative members of the Commission shall receive such compensation as is set forth in § 30-19.12, and nonlegislative members shall receive such compensation for the performance of their duties as provided in § 2.2-2813 . All members shall be reimbursed for all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825 . Such compensation and expenses shall be paid from the Fund.
4. Members and employees of the Commission shall be subject to the standards of conduct set forth in the State and Local Government Conflict of Interests Act (§ 2.2-3100 et seq.) and may be removed from office for misfeasance, malfeasance, nonfeasance, neglect of duty, or misconduct in the manner set forth therein.
5. Except as otherwise provided in this chapter, members and employees of the Commission shall be subject to the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
6. The chairman of the Commission shall submit to the Governor and the General Assembly an annual executive summary of the interim activity and work of the Commission no later than the first day of each regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly’s website.

History. 1999, cc. 880, 962, § 9-382; 2000, c. 1067; 2001, cc. 807, 844, § 3.1-1108; 2003, c. 885; 2005, c. 758; 2006, c. 45; 2008, c. 860; 2015, cc. 399, 433.

Editor’s note.

Acts 2015, cc. 399 and 433, cl. 2 provides: “That the three Commission members serving as of July 1, 2015, whose seats are eliminated by the reduction in the size of the Commission may serve the remainder of their unexpired terms.”

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and substituted “28” for “31” in subsection A; in subdivision A 6, substituted “Five” for “Three,” “or burley tobacco producers or active farmers” for “tobacco producers appointed by the Governor. Of the active flue-cured tobacco producers, two shall be,” substituted “seven” for “six” and added the second sentence; deleted subdivision 7, which read “Three nonlegislative citizen members who shall be active burley tobacco producers appointed by the Governor. Of the active burley tobacco producers, one member shall be appointed by the Governor from a list of three persons provided by the members of the General Assembly appointed to the Commission”; redesignated former subdivisions 8 and 9 as 7 and 8; and in subdivision 8, substituted “Nine” for “Eleven,” “nine” for “11” and “six” for “nine” in the first paragraph, added the last sentence of the second paragraph and deleted the fourth paragraph pertaining to terms of initial appointments.

§ 3.2-3103. Powers and duties of the Tobacco Region Revitalization Commission.

1. The Commission shall have the power and duty to:
   1. Adopt, use, and alter at will an official seal;
   2. Make bylaws for the management and regulation of its affairs;
   3. Maintain an office at such place or places within the Commonwealth as it may designate;
   4. Accept, hold, and administer moneys, grants, securities, or other property transferred, given, or bequeathed to the Commission, absolutely or in trust, for the purposes for which the Commission is created;
   5. Determine how moneys in the Fund are to be distributed;
   6. Authorize grants, loans, or other distributions of moneys in the Fund for the purposes set forth in this chapter;
   7. For each economic development grant or award, including a grant from the Tobacco Region Opportunity Fund, require a dollar-for-dollar match from non-Commission sources. Performance bonds shall be considered acceptable matching payment. No more than 25 percent of the match shall be in-kind. However, a match of less than 50 percent may be considered by a two-thirds majority vote of the Commission;
   8. Adopt policies governing the Tobacco Region Opportunity Fund, including a repayment policy. The Commission shall apply the policies consistently;
   9. Enter into a contractual or employment agreement with a financial viability manager (the Manager). The management agreement shall require the Manager to provide a written financial viability and feasibility report to the Commission as to the financial propriety of certain loans, grants, or other distributions of money made for the revitalization of a tobacco-dependent locality as proposed in accordance with the Commission’s strategic objectives. The Commission shall not make any loan, except a loan made through the Virginia Tobacco Region Revolving Fund created in Chapter 31.1 (§ 3.2-3112 et seq.); grant; or other distribution of money until the Manager has provided the Commission with a written recommendation as to the financial viability and feasibility of the proposed distribution of funds. However, nothing in this section shall eliminate consideration of strategic economic initiatives;
   10. Make and execute contracts and all other instruments and agreements necessary or convenient for the exercise of its powers and functions;
   11. Invest its funds as provided in this chapter or permitted by applicable law; and
   12. Do any lawful act necessary or appropriate to carry out the powers herein granted or reasonably implied, including use of whatever lawful means may be necessary and appropriate to recover any payments wrongfully made from the Fund.
2. The Commission shall undertake studies and gather information and data in order to determine: (i) the economic consequences of the reduction in or elimination of quota for tobacco growers; (ii) the potential for alternative cash crops; and (iii) any other matters the Commission believes will affect tobacco growers in the Commonwealth.
3. The Commission shall at least biennially develop a strategic plan containing specific priorities, measureable goals, and quantifiable outcomes. In developing the Strategic Plan, the Commission shall solicit input from local and regional economic developers, the Virginia Department of Agriculture and Consumer Services, the Virginia Economic Development Partnership, the Virginia Department of Housing and Community Development, the Virginia Tourism Authority, the Virginia Resources Authority, and the Center for Rural Virginia. The Strategic Plan shall state how each Fund award is consistent with the Commission’s achievement of measurable goals and outcomes and its advancement of the specific priorities of the Strategic Plan. The Strategic Plan shall also state how awards from the Fund are projected to affect key economic indicators of employment, income, educational attainment, amount of Virginia-grown agricultural and forestal products used by the project, and return on investment.
4. The Commission shall develop a publicly available online database of all Commission awards, listing for each project the project’s goals, the means by which the project fits into the Strategic Plan, the project’s expected and achieved outcomes, and the total amount of funding the Commission has awarded to the project through any prior grants.
5. The Commission shall submit a report annually to the Governor and the General Assembly.

History. 1999, cc. 880, 962, §§ 9-383, 9-388; 2001, cc. 807, 844, § 3.1-1109; 2008, c. 860; 2015, cc. 399, 433.

Cross references.

As to exclusions under the Virginia Freedom of Information Act for proprietary records and trade secrets, see § 2.2-3705.6 .

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and rewrote former subdivision A 5 as subdivisions A 5 and 6; added subdivisions A 7 through A 9 and redesignated the remaining subdivisions accordingly; added subsections C and D and redesignated former subsection C as subsection E.

§ 3.2-3104. Tobacco Indemnification and Community Revitalization Endowment.

1. There is hereby established in the state treasury a special fund to be designated the “Tobacco Indemnification and Community Revitalization Endowment.” The Endowment shall receive any proceeds from any sale of all or any portion of the Commission Allocation, and any gifts, grants and contributions that are specifically designated for inclusion in such Endowment. No part of the Endowment, neither corpus nor income, or interest thereon, shall revert to the general fund of the state treasury. The Endowment shall be under the management and control of the Treasury Board, and the Treasury Board shall have such powers and authority as may be necessary to exercise such management and control consistent with the provisions of this section. The income of the Endowment shall be paid out, not less than annually, to the Fund. In addition, up to six percent of the corpus of the Endowment shall be paid to the Fund annually upon request of the Commission, by majority vote, to the Treasury Board. Upon two-thirds vote of the Commission, up to 10 percent of the corpus of the Endowment shall be so paid. Upon three-fourths vote of the Commission, up to 15 percent of the corpus of the Endowment shall be so paid. No use of proceeds shall be made that would cause bonds issued on a tax-exempt basis to be deemed taxable. For purposes of this section, “income” of the Endowment means at the time of determination the lesser of the available cash in, or the realized investment income for the applicable period of, the Endowment, and “corpus” of the Endowment means at the time of determination the sum of the proceeds from the sale of all or any portion of the Commission Allocation, any gifts, grants, and contributions that have been credited to such Endowment, and any income not appropriated and withdrawn from the Endowment prior to June 30 of each year, less withdrawals from the corpus. Determinations by the Treasury Board, or the State Treasurer on behalf of the Treasury Board, as to the amount of income or the amount of the corpus shall be conclusive.
2. The Treasury Board shall serve as trustee of the Endowment and the corpus and income of the Endowment shall be withdrawn and credited to the Fund by order of the Treasury Board as provided in subsection A. The State Treasurer shall be custodian of the funds credited to the Endowment. The Treasury Board shall have full power to invest and reinvest funds credited to the Endowment in accordance with the provisions of the Uniform Prudent Management of Institutional Funds Act (§ 64.2-1100 et seq.) and, in addition, as otherwise provided by law. The Treasury Board may borrow money in such amounts as may be necessary whenever in its judgment it would be more advantageous to borrow money than to sell securities held for the Fund. Any debt so incurred may be evidenced by notes duly authorized by resolution of the Treasury Board, such notes to be retired no later than the end of the biennium in which such debt is incurred. The Treasury Board may commingle, for purposes of investment, the corpus of the Endowment provided that it shall appropriately account for the investments credited to the Endowment. The Treasury Board may hire independent investment advisors and managers as it deems appropriate to assist with investing the Endowment. The expenses of making and disposing of investments, such as brokerage commissions, legal expenses related to a particular transaction, investment advisory and management fees and expenses, transfer taxes, and other customary transactional expenses shall be payable out of the income of the Endowment.Not less than annually and more frequently if so desired by the Commission or requested by the Treasury Board, the Commission shall provide to the Treasury Board schedules of anticipated disbursements from the Fund for the current and succeeding fiscal year, and the Treasury Board shall, to the extent practicable, take into account such schedules and changes thereto in scheduling maturities and redemptions of its investments of the Endowment.

History. 2002, cc. 482, 488, § 3.1-1109.1; 2008, cc. 184, 860; 2015, cc. 399, 433.

Cross references.

As to powers and duties of the State Inspector General with regard to the Commission, see § 2.2-309.2 .

Editor’s note.

Acts 2008, c. 184, amended former § 3.1-1109.1, from which this section is derived. Pursuant to § 30-152, the 2008 amendment by c. 184 has been given effect in this section as set out above. In subsection B, “Prudent” was inserted following “Uniform” and “55-268.11” was substituted for “55-268.1” in the third sentence.

At the direction of the Virginia Code Commission, the reference to “Uniform Prudent Management of Institutional Funds Act (§ 55-268.11 et seq.)” was changed to “Uniform Prudent Management of Institutional Funds Act (§ 64.2-1100 et seq.)” to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and in subsection A, substituted “six” for “10” and “10” for “15” preceding “percent” in the sixth and seventh sentences, respectively, inserted “by majority vote” following “Commission” in the sixth sentence, and added the eighth sentence.

§ 3.2-3105. Appointment of director; Commission employees; counsel to the Commission.

1. The Governor shall appoint an executive director subject to confirmation by the General Assembly. The compensation shall be determined by the Commission, subject to approval by the Governor. The executive director shall serve as the secretary to the Commission and shall administer the affairs and business of the Commission in accordance with the provisions of this chapter and subject to the policies, control, and direction of the Commission. The Commission may employ technical experts and other officers, agents, and employees, permanent and temporary, as it requires, and shall determine their qualifications, duties, and compensation. The Commission may delegate to one or more of its agents or employees the administrative duties it deems proper. The actual expenses incurred in the performance of such duties shall be paid from the Fund.
2. Employees of the Commission shall be treated as state employees for purposes of participation in the Virginia Retirement System, health insurance, and all other employee benefits offered by the Commonwealth to its classified employees. Employees of the Commission shall not be subject to the provisions of Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2.
3. The Office of the Attorney General shall provide counsel to the Commission.

History. 1999, cc. 880, 962, § 9-384; 2001, cc. 807, 844, § 3.1-1110; 2002, cc. 482, 488; 2008, c. 860.

§ 3.2-3106. Tobacco Indemnification and Community Revitalization Fund; tax credits for technology industries in tobacco-dependent localities.

1. Money received by the Commonwealth pursuant to the Master Settlement Agreement shall be deposited into the state treasury subject to the special nonreverting funds established by subsection B and by §§ 3.2-3104 and 32.1-360 .
2. There is created in the state treasury a special nonreverting fund to be known as the Tobacco Indemnification and Community Revitalization Fund. The Fund shall be established on the books of the Comptroller. Subject to the sale of all or any portion of the Commission Allocation, 50 percent of the annual amount received by the Commonwealth from the Master Settlement Agreement shall be paid into the state treasury and credited to the Fund. In the event of such sale: (i) the Commission Allocation shall be paid in accordance with the agreement for the period of sale; and (ii) the Fund shall receive the amounts withdrawn from the Endowment in accordance with § 3.2-3104. 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 described in this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written authorization signed by the chairman of the Commission or his designee. The Fund shall also consist of other moneys received by the Commission, from any source, for the purpose of implementing the provisions of this chapter.
3. The obligations of the Commission shall not be a debt or grant or loan of credit of the Commonwealth, and the Commonwealth shall not be liable thereon, nor shall such obligations be payable out of any funds other than those credited to the Fund.

History. 1999, cc. 880, 962, § 9-385; 2000, c. 1042; 2001, cc. 807, 844, § 3.1-1111; 2002, cc. 482, 488; 2004, Sp. Sess. I, c. 1; 2008, c. 860; 2016, c. 305.

Cross references.

As to eligibility of licensed industrial hemp growers to receive tobacco settlement funds, see § 3.2-4119.

As to powers and duties of the State Inspector General with regard to the Commission, see § 2.2-309.2 .

Editor’s note.

Acts 2016, c. 305, cl. 3 provides: “That this act shall in no way alter or affect any (i) tax credit or tax benefit or other tax attribute allowed or earned under any section repealed by this act or (ii) tax liability or obligation pursuant to any such section.”

The 2016 amendments.

The 2016 amendment by c. 305 deleted the eighth sentence in subsection B, which read “Starting with the fiscal year beginning July 1, 2000, through December 31, 2009, the Commission may deposit moneys from the Fund into the Technology Initiative in Tobacco-Dependent Localities Fund, established under § 58.1-439.15, for purposes of funding the tax credits provided in §§ 58.1-439.13 and 58.1-439.14 and the grants provided in § 58.1-439.17 .”

§ 3.2-3107. Payments from the Fund; transfer and recovery of payments; limitation on claims.

1. No payments made, or otherwise payable, to tobacco farmers under this chapter shall be transferable or assignable, at law or in equity, except by testate or intestate succession, or by a property settlement agreement, separation agreement, or judicial decree in a separation or divorce proceeding. Except in actions initiated by or on behalf of the Commission, no payments made, or otherwise payable, to tobacco farmers under this chapter shall be subject to execution, levy, attachment, garnishment, or other legal process until such money has been paid or distributed. The Commonwealth, and any department, agency, or institution thereof, the Commission, and their agents and employees, shall not be a party or otherwise subject to such execution, levy, attachment, garnishment, or other legal process.
2. Grants, loans, or other distributions paid or payable from the Fund to promote economic growth and development shall not be subject to execution, levy, attachment, garnishment, or other legal process, except in actions initiated by or on behalf of the Commission. Such grants, loans, or other distributions shall only be transferable or assignable in accordance with terms established by the Commission.
3. Any payment from the Fund that is later determined to have been made wrongly or erroneously may be recovered by the Commission either by way of a credit or offset against any future payments otherwise distributable to the recipient or by judicial action. Prior to making any such determination, the Commission shall give the recipient reasonable prior written notice and an opportunity to be heard in accordance with rules established by the Commission.
4. In addition to any other penalties provided by law, any person requesting or applying for a payment from the Fund who knowingly makes any false, fictitious, or fraudulent statements or representations or otherwise knowingly provides any false, fictitious, or fraudulent information to the Commission shall forfeit his opportunity or eligibility to receive any payments from the Fund.
5. Any eligible person who fails, for any reason whatsoever, to apply for any indemnification payment determined to be distributable by the Commission by the deadline established by the Commission or its Executive Director for the receipt of applications or verification forms shall be forever barred from receiving such payment unless the person makes appropriate written application to the Commission that is received within one year of the established deadline. At the end of such one-year period, no action shall lie against the Fund or the Commission for such payments to the person from the Fund.
6. All payments made or eligible to be made under this chapter shall be deemed to be granted and to be held subject to the provisions of this chapter and any amending or repealing act that may hereafter be passed, and no person shall have any claim for compensation, or otherwise, by reason of his payments or payment eligibility being affected in any way by any amending or repealing act.

History. 2001, c. 757, § 9-385.1; 2001, c. 844, § 3.1-1111.1; 2008, c. 860.

§ 3.2-3108. Distribution of Fund.

1. The Fund shall be distributed by the Commission for the following purposes:
   1. The stimulation of economic growth and development in tobacco-dependent communities in an equitable manner throughout the Southside and Southwest regions of the Commonwealth, to assist such communities in reducing their dependency on, or finding alternative uses for, tobacco and tobacco-related business; and
   2. Scientific research performed at one of the Commonwealth’s National Cancer Institute-designated research institutes designed to advance the treatment and prevention of cancers that directly impact the citizens of tobacco-dependent communities throughout the Southside and Southwest regions of the Commonwealth.
2. The Commission may require that as a condition of receiving any grant or loan incentive that is based on employment goals, a recipient company must provide copies of employer quarterly payroll reports provided to the Virginia Employment Commission to verify the employment status of any position included in the employment goal.The Commission shall require that each project have an accountability matrix. For an economic development program, the matrix shall be based on return on investment, jobs, wages, and capital investment. For a scholarship program, the matrix shall be based on attainment of bachelor’s degrees, credentials, or jobs. For a health care program, the matrix shall be based on health care outcomes. For an agriculture or forestry program, the matrix shall be based on jobs, capital investment, amount of Virginia-grown agricultural and forestal products used by the project, projected impact on agricultural and forestal producers, and a return on investment analysis.The Commission shall require each applicant to provide with its application (i) baseline figures, (ii) explicit and quantified outcome expectations, (iii) the method used to calculate outcome expectations, (iv) details on the timing of the expected outcomes, and (v) a specific link to economic revitalization and the Strategic Plan.The Commission shall require that as a condition of receiving any grant or loan incentive each project (a) demonstrate how it will address low employment levels, per capita income, educational attainment, or other workforce indicators; (b) be consistent with the Strategic Plan; and (c) receive a written recommendation as to its financial viability and feasibility from the Manager pursuant to subdivision A 9 of § 3.2-3103.

History. 1999, cc. 880, 962, § 9-383; 2001, cc. 807, 844, § 3.1-1112; 2008, c. 860; 2012, c. 629; 2013, c. 547; 2015, cc. 399, 433.

The 2012 amendments.

The 2012 amendment by c. 629 added subdivision 3 and made related changes.

The 2013 amendments.

The 2013 amendment by c. 547 added the last paragraph.

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and added the designator “A” at the beginning of the section; deleted subdivision A 1, pertaining to compensation of Virginia tobacco farmers for the decline or elimination of the tobacco quota based on averaging the basic burley and flue-cured quota; redesignated former subdivisions 2 and 3 as subdivisions A 1 and A 2; inserted the subsection B designation; added the second, third and fourth paragraphs of subsection B; and made stylistic changes.

§ 3.2-3109. Form of accounts; audit.

1. The accounts and records of the Commission showing the receipt and disbursement of funds from whatever source derived shall be in such form as the Auditor of Public Accounts prescribes.
2. The accounts of the Commission shall be audited by the Auditor of Public Accounts, or his legally authorized representatives, as determined necessary by the Auditor of Public Accounts. Copies of the audit shall be distributed to the Governor and to the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations.

History. 1999, cc. 880, 962, §§ 9-386, 9-387; 2001, c. 844, § 3.1-1113; 2008, c. 860; 2018, cc. 57, 307.

Editor’s note.

The Virginia Code Commission authorized the substitution of “Senate Committee on Finance and Appropriations” for “Senate Committee on Finance” in subsection B. March 10, 2021.

The 2018 amendments.

The 2018 amendments by cc. 57 and 307 are identical, and in the first sentence of subsection B, deleted “annually” following “shall be audited” and inserted “as determined necessary by the Auditor of Public Accounts”; and in the second sentence, deleted “annual” preceding “audit.”

§ 3.2-3110. Declaration of public purpose; exemption from taxation.

1. The exercise of the powers granted by this chapter shall be in all respects for the benefit of the citizens of the Commonwealth and for the promotion of their welfare, convenience, and prosperity.
2. The Commission shall be performing an essential governmental function in the exercise of the powers conferred upon it by this chapter, and the property of the Commission and its income and operations shall be exempt from taxation or assessments upon any property acquired or used by the Commission under the provisions of this chapter.

History. 1999, cc. 880, 962, § 9-389; 2001, c. 844, § 3.1-1114; 2008, c. 860.

§ 3.2-3111. Confidentiality of information.

1. The Commission shall hold in confidence the personal and financial information supplied to it, or maintained by it, concerning tobacco farmers, including names, addresses, and payment information. The Commission may require any tobacco farmer or other applicant for payments from the Fund to provide his social security or taxpayer identification number.
2. Notwithstanding the foregoing, personal and financial information supplied to or maintained by the Commission relating to tobacco farmers may be used, exchanged, and disclosed at the Commission’s discretion as may be necessary or appropriate to make payments under, administer, or enforce this chapter and related state and federal laws, any other state or federal tobacco indemnification or loss assistance program, or a national tobacco community trust fund.
3. Nothing in this section shall prohibit the Commission, in its discretion, from releasing any information that has been transformed into a statistical or aggregate form that does not allow the identification of the person who supplied particular information or the sum of money received by a particular recipient.
4. Personal and financial information supplied by or maintained on persons or entities applying for or receiving distributions from the Fund for economic growth and development, as well as specific information relating to the amount and identity of recipients of such distributions, shall be subject to disclosure in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The provisions of that Act applicable to records or meetings of the Virginia Economic Development Partnership or other state or local economic development entities shall apply mutatis mutandis to the Commission and the Manager selected pursuant to subdivision A 9 of § 3.2-3103.
5. The provisions of this section shall also apply to any department, agency, institution, political subdivision, or employee of the Commonwealth or a political subdivision that receives personal or financial information from the Commission in order to process checks for payments from the Fund or to assist the Commission with the administration and enforcement of this chapter.

History. 2001, c. 757, § 9-389.1; 2001, c. 844, § 3.1-1114.1; 2008, c. 860; 2015, cc. 399, 433.

The 2015 amendments.

The 2015 amendments by cc. 399 and 433 are identical, and added “and the Manager selected pursuant to subdivision A 9 of § 3.2-3103” at the end of subsection D.

§ 3.2-3112. Definitions.

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

“Authority” means the Virginia Resources Authority created in Chapter 21 (§ 62.1-197 et seq.) of Title 62.1.

“Commission” means the Tobacco Region Revitalization Commission created pursuant to § 3.2-3101.

“Cost,” as applied to any project financed under the provisions of this chapter, means the total of all costs incurred by the local government as reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project. It includes, without limitation, all necessary developmental, planning, and feasibility studies, surveys, plans, and specifications; architectural, engineering, financial, legal, or other special services; the cost of acquisition of land and any buildings and improvements thereon, including the discharge of any obligations of the sellers of such land, buildings, or improvements; site preparation and development, including demolition or removal of existing structures; construction and reconstruction; labor; materials, machinery, and equipment; the reasonable costs of financing incurred by the local government in the course of the development of the project; carrying charges incurred before the project is placed in service; interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service; necessary expenses incurred in connection with placing the project in service; the funding of accounts and reserves that the Authority may require; and the cost of other items that the Authority determines to be reasonable and necessary.

“Endowment” means the Tobacco Indemnification and Community Revitalization Endowment as established in § 3.2-3104.

“Equity” means any contribution to a project other than debt financing, including a federal, state, or local grant, except that the grant shall not be a Commission grant.

“Fund” means the Virginia Tobacco Region Revolving Fund created by this chapter.

“Local government” means any county, city, town, municipal corporation, authority, district, commission, or political subdivision created by the General Assembly or pursuant to the Constitution of Virginia or laws of the Commonwealth, or any combination of any two or more of the foregoing, located in any of the tobacco-dependent communities in the Southside and Southwest regions of Virginia.

“Project” means the same as that term is defined in § 62.1-199 and any other proposal recommended for evaluation and disbursement by the Commission and credit approved by the Authority, subject to such conditions and policies as agreed to by the Commission and the Authority. Projects other than those defined in § 62.1-199 shall be eligible to borrow from the Fund only in the event that other funding for the project equal to 25 percent of the total cost of the project is available through equity.

History. 2015, cc. 399, 433; 2017, c. 254.

The 2017 amendments.

The 2017 amendment by c. 254 added the definition for “Equity”; and in the definition of “Project” inserted “and any other proposal recommended for evaluation and disbursement by the Commission and credit approved by the Authority, subject to such conditions and policies as agreed to by the Commission and the Authority” in the first sentence and added the second sentence.

§ 3.2-3113. Creation and management of Virginia Tobacco Region Revolving Fund.

1. There shall be set apart as a permanent and perpetual fund, to be known as the Virginia Tobacco Region Revolving Fund, with a sum of up to $50 million made available from (i) the corpus of the taxable portion of the Endowment paid to the Fund per request from the Commission within the limits imposed pursuant to § 3.2-3104, (ii) sums, if any, appropriated to the Fund by the General Assembly, (iii) all receipts by the Fund from loans made by it to local governments, (iv) all income from the investment of moneys held in the Fund, and (v) any other sums designated for deposit to the Fund from any source public or private, including, without limitation, any federal grants, awards, or other forms of assistance received by the Commonwealth that are eligible for deposit therein under federal law. Transfers from the Endowment to the Fund shall occur as required for loan disbursements.
2. The Authority shall administer and manage the Fund and establish the interest rates and repayment terms of such loans as are provided for by this chapter in accordance with a memorandum of agreement with the Commission. In order to carry out the administration and management of the Fund, the Authority, in consultation with the Commission, is granted the power to employ officers, employees, agents, advisers, and consultants, including, without limitation, attorneys, financial advisers, engineers and other technical advisers, and public accountants, and, the provisions of any other law to the contrary notwithstanding, to determine their duties and compensation without the approval of any other agency or instrumentality. The Authority may disburse from the Fund the reasonable costs and expenses it incurs in the administration and management of the Fund and a reasonable fee to be approved by the Commission for its management services, but the Authority shall not charge its ordinary expenses to the Fund or the Commission. The Department of the Treasury, as the party holding the Endowment, shall be a party to the memorandum of agreement. Under all circumstances, the Commission shall select the projects eligible for the loans.
3. The Commission shall direct the distribution of loans from the Fund to particular local governments. Consistent with this chapter, the Commission shall, after consultation with all interested parties, develop a guidance document governing project eligibility and project priority criteria.

History. 2015, cc. 399, 433.

§ 3.2-3114. Deposit of money; expenditures; investments.

1. All money belonging to the Fund shall be deposited in an account or accounts in banks or trust companies organized under the laws of the Commonwealth, national banking associations located in the Commonwealth, or savings institutions located in the Commonwealth and organized under the laws of the Commonwealth or the United States. The money in these accounts shall be paid by check signed by the Executive Director of the Authority or another officer or employee designated by the Board of Directors of the Authority. All deposits of money shall, if required by the Authority, be secured in a manner determined by the Authority to be prudent, and all banks, trust companies, and savings institutions are authorized to give security for the deposits.
2. Money in the Fund shall not be commingled with other money of the Authority. Money in the Fund not needed for immediate use or disbursement may be invested or reinvested by the Authority in obligations or securities that are considered lawful investments for public funds under the laws of the Commonwealth, including the Local Government Investment Pool Act (§ 2.2-4600 et seq.).

History. 2015, cc. 399, 433.

§ 3.2-3115. Collection of money due the Fund.

The Authority is empowered to collect, or to authorize others to collect on its behalf, amounts due to the Fund under any loan to a local government, including, if appropriate, by taking the action required by § 15.2-2659 or 62.1-216.1 to obtain payment of any amounts in default. Proceedings to recover amounts due to the Fund may be instituted by the Authority in the name of the Fund in the appropriate circuit court.

History. 2015, cc. 399, 433.

§ 3.2-3116. Loans to local governments.

1. Except as otherwise provided in this chapter, money in the Fund shall be used solely to make loans to local governments to finance or refinance the cost of any project that has an identifiable revenue stream from which the loan proceeds may be repaid. The local government to which a loan is to be made, the purpose of the loan, the amount of the loan, and the associated identifiable revenue stream shall be designated in writing by the Commission to the Authority following consultation with the Authority. No loan from the Fund shall exceed the total cost of the project to be financed or the outstanding principal amount of the indebtedness to be refinanced plus reasonable financing expenses.
2. Except as otherwise provided in this chapter, the Authority shall determine the interest rate and terms and conditions of any loan from the Fund, which may vary between local governments. Each loan shall be evidenced by appropriate bonds or notes of the local government payable to the Fund. The bonds or notes shall have been duly authorized by the local government and executed by its authorized legal representatives. The Authority is authorized to require in connection with any loan from the Fund such documents, instruments, certificates, legal opinions, and other information as it may deem necessary or convenient.
3. In addition to any other terms or conditions that the Authority may establish, the Authority may require, as a condition to making any loan from the Fund, that the local government receiving the loan covenant to perform any of the following:
   1. Establish and collect rents, rates, fees, and charges to produce revenue sufficient to pay all or a specified portion of (i) the costs of operation, maintenance, replacement, renewal, and repairs of the project; (ii) any outstanding indebtedness incurred for the purposes of the project, including the principal of, premium, if any, and interest on the loan from the Fund to the local government; and (iii) any amounts necessary to create and maintain any required reserve, including any rate stabilization fund deemed necessary or appropriate by the Authority to offset the need, in whole or in part, for future increases in rents, rates, fees, or charges.
   2. Create and maintain a special fund or funds for the payment of the principal of, premium, if any, and interest on the loan from the Fund to the local government and any other amounts becoming due under any agreement entered into in connection with the loan, or for the operation, maintenance, repair, or replacement of the project or any portions thereof or other property of the local government, and deposit into any fund or funds amounts sufficient to make any payments on the loan as they become due and payable.
   3. Create and maintain other special funds as required by the Authority.
   4. Perform other acts otherwise permitted by applicable law to secure payment of the principal of, premium, if any, and interest on the loan from the Fund to the local government and to provide for the remedies of the Fund in the event of any default by the local government in the payment of the loan, including, without limitation, any of the following:
      1. The procurement of insurance, guarantees, letters of credit and other forms of collateral, security, liquidity arrangements, or credit supports for the loan from any source, public or private, and the payment therefor of premiums, fees, or other charges;
      2. The combination of one or more projects, or the combination of one or more projects with one or more other undertakings, facilities, utilities, or systems, for the purpose of operations and financing, and the pledging of the revenues from such combined projects, undertakings, facilities, utilities, and systems to secure the loan from the Fund to the local government made in connection with such combination or any part or parts thereof;
      3. The maintenance, replacement, renewal, and repair of the project; and
      4. The procurement of casualty and liability insurance.
   5. Obtain a review of the accounting and the internal controls from the Auditor of Public Accounts or his legally authorized representative. The Authority may request additional reviews at any time during the term of the loan. In addition, anyone receiving a report in accordance with § 3.2-3109 may request an additional review as set forth in this section.
4. Any local government borrowing money from the Fund is authorized to perform any acts, take any actions, adopt any proceedings, and make and carry out any contracts that are contemplated by this chapter. Such contracts need not be identical among all local governments but may be structured as determined by the Authority according to the needs of the contracting local government and the Fund.
5. Subject to the rights, if any, of the registered owners of any of the bonds of the Authority, the Authority may consent to and approve any modification in the terms of any loan to any local government.

History. 2015, cc. 399, 433.

§ 3.2-3117. Pledge of loans to secure bonds of the Authority.

1. The Authority is empowered at any time and from time to time to pledge, assign, or transfer from the Fund to banks or trust companies designated by the Authority any or all of the assets of the Fund to be held in trust as security for the payment of the principal of, premium, if any, and interest on any or all of the bonds, as defined in § 62.1-199 , issued to finance any project located in the tobacco-dependent communities in the Southside and Southwest regions of Virginia. The interests of the Fund in any assets so transferred shall be subordinate to the rights of the trustee under the pledge, assignment, or transfer.
2. To the extent funds are not available from other sources pledged for such purpose, any of the assets or payments of principal and interest received on the assets pledged, assigned, or transferred or held in trust may be applied by the trustee thereof to the payment of the principal of, premium, if any, and interest on such bonds of the Authority secured thereby, and, if such payments are insufficient for such purpose, the trustee is empowered to sell any or all of such assets and apply the net proceeds from the sale to the payment of the principal of, premium, if any, and interest on such bonds of the Authority.
3. Any assets of the Fund pledged, assigned, or transferred in trust as set forth in this section and any payments of principal, interest, or earnings received thereon shall remain part of the Fund but shall be subject to the pledge, assignment, or transfer to secure the bonds of the Authority and shall be held by the trustee to which they are pledged, assigned, or transferred until no longer required for such purpose by the terms of the pledge, assignment, or transfer.

History. 2015, cc. 399, 433.

§ 3.2-3118. Sale of loans.

The Authority is empowered at any time and from time to time to sell, upon such terms and conditions as the Authority shall deem appropriate, any loan, or interest therein, made pursuant to this chapter. The net proceeds of sale remaining after the payment of the costs and expenses of the sale shall be designated for deposit to, and become part of, the Fund.

History. 2015, cc. 399, 433.

§ 3.2-3119. Powers of the Authority.

The Authority is authorized to do any act necessary or convenient to the exercise of the powers granted in this chapter or reasonably implied thereby.

History. 2015, cc. 399, 433.

§ 3.2-3120. Report to the General Assembly and the Governor.

The Commission, in conjunction with the Authority, shall report annually to the General Assembly and the Governor on all loans made from the Fund.

History. 2015, cc. 399, 433.

§ 3.2-3121. Liberal construction of chapter.

The provisions of this chapter shall be liberally construed to the end that its beneficial purposes may be effectuated. Insofar as the provisions of this chapter are inconsistent with the provisions of any other law, general, special, or local, the provisions of this chapter shall be controlling.

History. 2015, cc. 399, 433.

§ 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:
   1. Who pasteurize or bottle milk or process milk into fluid milk;
   2. 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
   3. 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.

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

Law Review.

For note, “Price-Fixing Powers of the Virginia Milk Commission,” see 43 Va. L. Rev. 463 (1957).

§ 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.

History. 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.

History. 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.

History. 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.

History. 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.

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

§ 3.2-3206. Public hearing required.

1. 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.
2. 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.
3. The Commission may determine notice requirements and the time and location of any public hearing held under this section.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

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

§ 3.2-3217. Appeals generally.

1. 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.
2. 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.
3. 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.

History. 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.

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

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

§ 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.

History. 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.

History. 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.

History. 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.

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

Cross references.

As to punishment for Class 2 misdemeanors, see § 18.2-11 .

§ 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.

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

Michie’s Jurisprudence.

For related discussion, see 13A M.J. Monopolies and Restraints of Trade, § 1.

§ 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.

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

§ 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:

§ 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.

History. 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.

History. 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.

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

§ 3.2-3304. (Expires July 1, 2023) Definitions.

For the purposes of this chapter, unless the context requires a different meaning:

“DCR” means the Department of Conservation and Recreation.

“Farm Act” means the federal Agriculture Improvement Act of 2018, P.L. 115-334.

“Federal coverage program” means the federal margin coverage program for dairy producers as contained in the Farm Act.

“Program” means the Dairy Producer Margin Coverage Premium Assistance Program created pursuant to this chapter.

History. 2021, Sp. Sess. I, cc. 330, 331.

Cross references.

As to July 1, 2023, sunset date for this Chapter, see § 3.2-3307.

Effective date.

This section is effective July 1, 2021.

§ 3.2-3305. (Expires July 1, 2023) Dairy Producer Margin Coverage Premium Assistance Program.

1. The Commissioner shall establish and administer the Dairy Producer Margin Coverage Premium Assistance Program to assist dairy producers that participate in the federal coverage program.
2. Any dairy producer in the Commonwealth that participates in the federal coverage program at the first tier coverage level and (i) has a resource management plan and has been certified as having implemented such plan by, or is in the process of having such plan reviewed by, DCR or a local soil and water conservation district, (ii) has an approved Natural Resource Conservation Service nutrient management or soil health plan developed by an approved planner, or (iii) has a nutrient management plan that has been approved by, or is currently being reviewed by, DCR shall be eligible to apply to participate in the Program. An eligible dairy producer shall apply to the Department by May 15 of each year to participate.
3. Any participating dairy producer that has paid an annual federal premium payment at the tier I level in accordance with the Farm Act and provides proof of such payment to the Department shall have the amount of such premium reimbursed by the Department. Such reimbursement shall be provided on a first-come, first-served basis and shall be subject to availability of funds expressly appropriated for the purposes set forth in this chapter.

History. 2021, Sp. Sess. I, cc. 330, 331; 2022, c. 1.

Cross references.

As to July 1, 2023, sunset date for this Chapter, see § 3.2-3307.

The 2022 amendments.

The 2022 amendment by c. 1, effective February 14, 2022, in subsection B, inserted clause (ii) in the first sentence and substituted “May 15” for “February 1” in the last sentence.

Effective date.

This section is effective July 1, 2021.

§ 3.2-3306. (Expires July 1, 2023) Report.

The Commissioner shall submit an annual report no later than December 1 of each year to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources assessing the effectiveness of the Program in preserving and assisting with the continued operation of dairy producers in the Commonwealth.

History. 2021, Sp. Sess. I, cc. 330, 331.

Cross references.

As to July 1, 2023, sunset date for this Chapter, see § 3.2-3307.

Effective date.

This section is effective July 1, 2021.

§ 3.2-3307. (Expires July 1, 2023) Expiration of chapter.

The provisions of this chapter shall expire on July 1, 2023.

History. 2021, Sp. Sess. I, cc. 330, 331.

Effective date.

This section is effective July 1, 2021.

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

1. 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.
2. 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.

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

Research References.

Agricultural Law (Matthew Bender). Harl.

§ 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.

History. 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.

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

§ 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.

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

Cross references.

As to the Local Food and Farming Infrastructure Grant Program, see § 3.2-311.

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

1. 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:
      1. Guidelines for fees to be charged at the markets;
      2. Standards for evaluating market operations;
      3. Criteria for the expansion of existing state-owned farmers market facilities and the establishment of new markets in the future;
      4. Changes in management of markets; and
      5. 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.
2. 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.

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

The 2017 amendments.

The 2017 amendment by c. 5 deleted the last sentence in subsection B, which required an annual report to Committee chairmen summarizing the market operators’ reports and plans; deleted former subsection C, which required an annual report to the Board on receipt and expenditure of funds, etc., in state-owned farmers market facilities.

§ 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.

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

§ 3.2-3600. (Effective until July 1, 2022) 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.

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

Editor’s note.

Acts 2011, cc. 341 and 353, cl. 3 provides: “That the Department of Agriculture and Consumer Services shall provide, no later than December 15, 2011, a report to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources concerning the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The report shall (i) conduct an assessment of the most effective means to encourage the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer, (ii) determine the most appropriate percentages of slowly available nitrogen to be included in lawn fertilizer and lawn maintenance fertilizer, (iii) recommend the most appropriate effective date for any change, (iv) calculate the costs to the manufacturer and consumer, and (v) provide a review of any other issues related to the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The Department shall consult with the Department of Conservation and Recreation and the Chesapeake Bay Commission and, at the Department’s discretion, may convene a technical advisory committee of stakeholders concerning the development and content of the report.”

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and added the definitions of “lawn fertilizer,” “lawn maintenance fertilizer,” “manipulated manure,” and “turf.”

The 2011 amendments by cc. 552 and 564 are identical, and added the definitions for “AAPFCO,” “AOAC,” and “Lot”; in the definition for “Composting,” combined the former two sentences into one, and therein substituted “through a process that inhibits pathogens, viable weed seeds, and odors” for “It may be”; in the definition for “Contractor-applicator,” deleted “distribute or” following “hold a permit to”; in the definition for “Guaranteed analysis,” substituted “the minimum percentage of plant nutrients claimed as required” for “that information required”; in the definition for “Industrial co-product,” substituted “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” for “a product derived from an industrial process” and deleted “soil conditioner” following “soil amendment”; in the definition for “Labeling,” inserted “and internet content” and made a related change; in the definition for “Official sample,” deleted “and designated as ‘official’ by the Board” from the end; in the definition for “Regulated product,” deleted “soil conditioner” following “soil amendment”; rewrote the definition for “Soil amendment”; and deleted the definition for “Soil conditioner.”

The 2022 amendments.

The 2022 amendments by cc. 538 and 539 are identical, and added “Anaerobic digestion” and “Digestate” definitions; and inserted “digestate” in the “Regulated product” definition.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, § 11.

§ 3.2-3600. (Effective July 1, 2022) Definitions.

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

“AAPFCO” means the Association of American Plant Food Control Officials.

“Anaerobic digestion” means the controlled anaerobic biological decomposition of organic waste material to produce biogas and digestate.

“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.

“Digestate” means a biologically stable material derived from the process of anaerobic digestion.

“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, digestate, 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.

History. 1994, c. 740, § 3.1-106.2; 2002, c. 473; 2008, c. 860; 2011, cc. 341, 353, 552, 564; 2022, cc. 538, 539.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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

Cross references.

As to exemptions, generally, from the Administrative Process Act, see § 2.2-4002 .

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subdivision B 1, substituted “Terms, Definitions, and Standards adopted by the AAPFCO” for “Terms and Definitions adopted by the Association of American Plant Food Control Officials”; in subdivision B 2, substituted “adopted by AOAC International” for “adopted by the Association of Official Analytical Chemists”; and in subdivision B 3, deleted “or the Association of Official Analytical Chemists” from the end and made a related change.

§ 3.2-3602. Local government regulation of fertilizer.

1. 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 .
2. The Commissioner may enter into an agreement with a locality to provide oversight and data collection assistance related to the requirements of certified contractor-applicators pursuant to § 3.2-3602.1.

History. 2007, c. 563, § 3.1-106.4:1; 2008, c. 860; 2011, cc. 341, 353; 2013, cc. 756, 793; 2020, c. 413.

Editor’s note.

For complete transition provisions related to transfer of certain water quality programs (stormwater management, erosion and sediment control, and the Chesapeake Bay Preservation Areas) formerly administered by the Department of Conservation and Recreation, to the Department of Environmental Quality, see Acts 2013, cc. 756 and 793, cls. 4 through 14, noted in full under Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1.

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and substituted “use, application, storage or distribution of fertilizers except by ordinance as provided for in the requirements of the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.), the Erosion and Sediment Control Law (§ 10.1-560 et seq.), the Stormwater Management Act (§ 10.1-603.1 et seq.) or other nonpoint source regulations adopted by the Department of Conservation and Recreation or the Soil and Water Conservation Board” for “or distribution of fertilizers” in the first sentence.

The 2013 amendments.

The 2013 amendments by cc. 756 and 793 are identical, and substituted “(§ 62.1-44.15:67 et seq.)” for “(§ 10.1-2100 et seq.),” “(§ 62.1-44.15:24 et seq.)” for “(§ 10.1-603.1 et seq.),” and “Department of Environmental Quality or the State Water Control Board” for “Department of Conservation and Recreation or the Soil and Water Conservation Board” in the first sentence.

The 2020 amendments.

The 2020 amendment by c. 413 added subsection B.

OPINIONS OF THE ATTORNEY GENERAL

Restrictions on use of fertilizer. —

Virginia locality is authorized by § 10.1-603.7 [now § 62.1-44.15:33 ] and § 15.2-924.1 to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by subsection A of § 10.1-603.7 [now § 62.1-44.15:33 ] and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by subsection A of § 10.1-603.7 [now § 62.1-44.15:33]. See opinion of Attorney General to James E. Barnett, Esq., York County Attorney, 09-035, 2009 Va. AG LEXIS 55 (9/1/09).

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

1. 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.
2. 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 50 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.
3. The Board may impose a civil penalty of up to $1,000 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.
4. 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.
5. 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.
6. 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.

History. 2008, c. 686, § 3.1-106.4:2; 2011, cc. 341, 353, 552, 564; 2020, c. 413.

Editor’s note.

Acts 2008, c. 686 enacted § 3.1-106.4:2, from which this section is derived. Pursuant to § 30-152, Acts 2008, c. 686 has been given effect in this section as set out above.

Acts 2008, c. 686, cl. 2 provides: “That the Commissioner of Agriculture and Consumer Services shall report the status of the regulations and the implementation of the program to the Chairmen of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources by July 1, 2009, and each succeeding year until the regulations have been adopted and the program has been implemented.”

Acts 2011, cc. 341 and 353, cl. 3 provides: “That the Department of Agriculture and Consumer Services shall provide, no later than December 15, 2011, a report to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources concerning the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The report shall (i) conduct an assessment of the most effective means to encourage the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer, (ii) determine the most appropriate percentages of slowly available nitrogen to be included in lawn fertilizer and lawn maintenance fertilizer, (iii) recommend the most appropriate effective date for any change, (iv) calculate the costs to the manufacturer and consumer, and (v) provide a review of any other issues related to the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The Department shall consult with the Department of Conservation and Recreation and the Chesapeake Bay Commission and, at the Department’s discretion, may convene a technical advisory committee of stakeholders concerning the development and content of the report.”

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and rewrote the section.

The 2011 amendments by cc. 552 and 564 are identical, and in subsection A, added the clause (i) and (ii) designations, added clause (iii) and made related changes, and deleted the last sentence, which read: “The regulations shall establish (i) training requirements and (ii) proper nutrient management practices in accordance with § 10.1-104.2 , and including soil analysis techniques, equipment calibration, and the timing of the application”; added subsection B and redesingated the remaining subsections accordingly; and in subsection E, substituted “Any person who is subject to the regulation and who applies” for “Contractor-applicators and licensees who apply.”

The 2020 amendments.

The 2020 amendment by c. 413, in subsection B, substituted “50 acres” for “100 acres” in the second sentence and in subsection C, substituted “$1,000” for “$250” in the first sentence.

§ 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.

History. 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.

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

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

1. 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.
2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and designated the existing provisions of the section as subsection A, and therein, in the first sentence, deleted “and manufacturers permit year for all contractor-applicators” following “distributors” and in the last sentence, deleted “permit” following “license” throughout and “be issued to” preceding “expire,” inserted “properly completed” and made minor stylistic changes; and added subsection B.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. The licensee shall inform the Commissioner in writing of additional distribution points established during the period of the license.
6. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in the first sentence in subsection A, deleted “manufacturer or” preceding “distributor”; in the last sentence in subsections A and B, deleted “or approved” following “furnished”; and added subsection F.

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

1. 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.
2. The Commissioner shall furnish a certificate of registration to the applicant after approval of the registration.
3. 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.
4. The Commissioner may require verification of any labeling claims for and any composition of any regulated product.
5. Custom-media and horticultural growing media planted with live plant material are exempt from labeling and registration requirements and inspection fees.
6. 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.
7. 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.
8. 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.

History. 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.

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and added subsection G, and redesignated former subsection G as subsection F.

The 2011 amendments by cc. 552 and 564 are identical, and in subdivision A 1, substituted “who is the guarantor of” for “whose name is on the label of,” and deleted “packaged in containers of 50 pounds or less dry net weight, or five gallons or less liquid net volume” following “specialty fertilizer” and “or approved” following “furnished”; in subdivision A 2, inserted “is the guarantor and who,” and deleted “or approved” following “furnished” and “soil conditioner” following “soil amendment” throughout; in subsection B, substituted “certificate of registration” for “copy of the registration”; in the introductory paragraph in subsection C, deleted “soil conditioner” following “soil amendment” and “a label that includes” following “application”; in subdivision C 1, deleted “soil conditioners” following “soil amendments”; in subsection D, inserted “and any composition of”; and in subsection F, substituted “distributor” for “manufacturer,” inserted “or fails to comply with registration renewal requirements” and made a minor stylistic change.

The 2012 amendments.

The 2012 amendment by c. 796 inserted subsection G and redesignated former subsection G as subsection H.

§ 3.2-3607.1. Consumer education.

1. 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.
2. 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.

History. 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 .

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

The 2013 amendments.

The 2013 amendment by c. 758 inserted the clause (i) designator and added clause (ii) of the second sentence, and made a related change.

§ 3.2-3608. Contractor-applicator permit.

1. 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.
2. 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.
3. An annual permit shall be required for each location or outlet that applies any regulated product.
4. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subsection A, in the first sentence, deleted “distribute or” preceding “apply” and inserted “first,” and in the last sentence, deleted “or pay a fee” from the end; in subsection B, in the first sentence, substituted “obtain a permit within 15 working days of notification of the requirement to obtain a permit shall pay a $35 late fee” for “obtain a license or permit during that period, shall pay a $50 late fee” and deleted “license or” preceding “permit fee,” and added the last sentence; added subsection C; and redesignated former subsection C as subsection D, and therein inserted “and the contractor-applicator’s employees or agents applying any regulated product” and “and with regulations adopted by the Board.”

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

1. The reporting year for regulated products shall be July 1 through June 30 of the following year.
2. 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.
3. 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.
4. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subdivision B 2, deleted “or approved” following “furnished”; in subsection C, substituted “any regulated product” for “fertilizer” and “per ton of regulated product” for “per ton of fertilizer, including specialty fertilizer,” and deleted “as provided for in subsection B” following “nonlicense”; deleted subsection D, which concerned the payment of an inspection fee to the Commissioner; and redesignated former subsection E as subsection D, and therein substituted “Any person who distributes any regulated product to a nonlicensee shall pay” for “The person subject to subsection B shall pay.”

§ 3.2-3610. Statistical reports.

1. For commercial fertilizer:
   1. Any person distributing commercial fertilizer to a nonlicensee shall furnish the Commissioner an annual statistical report showing:
      1. The county or city of the nonlicensee consignee;
      2. The amounts (expressed in tons, or decimal portions) of each grade of fertilizer; and
      3. 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:
      1. A statistical summary report on a form prescribed by the Commissioner, on or before August 1; or
      2. 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.
2. For all other regulated products:
   1. The person distributing or selling such products to a nonlicensee shall furnish the Commissioner an annual report showing:
      1. The county or city of the nonlicensee consignee; and
      2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subdivision A 1, deleted “or selling” following “distributing” and substituted “an annual statistical report” for “a monthly report”; in the introductory language in subdivision A 2, substituted “year” for “month”; in subdivision A 2 a, inserted “statistical” and substituted “August 1” for “the 20th day of each month”; in subdivision A 2 b, inserted “statistical” and substituted “annual tonnage report” for “monthly tonnage report”; and in subdivision A 3, substituted “annual statistical report” for “monthly report” and “filed within 15 working days of the specified filing date” for “filed by the due date.”

§ 3.2-3611. (Effective until July 1, 2022) Labeling.

1. 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:
      1. 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:
         1. Total Nitrogen (N)                   . . . . . . . .   %Available Phosphate (P205)                   . . . . . . . .   %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;
      2. 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;
      3. For horticultural growing media, include a list of ingredients and other guarantees as required by regulation and a statement of added fertilizers, if any;
      4. 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;
      5. When an industrial co-product is used as an ingredient, identify the source material and percentage or other acceptable unit; and
      6. 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.
2. 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.
3. [Repealed.]
4. 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.”

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

The 2011 amendments.

The 2011 amendments by cc. 341 and 353 are identical, and added subsection D.

The 2011 amendments by cc. 552 and 564 are identical, and in the first sentence in subsection A, substituted “distributor” for “manufacturer”; in the introductory paragraph in subdivision A 3 a, substituted the language beginning “conform to the requirements adopted” and ending “as amended” for “conform to the following”; in subdivision A 3 a (3), inserted “Agricultural” in the next-to-last sentence; rewrote subdivision A 3 b, which read: “For soil amendments, consist of a list of ingredients, and may include a statement of naturally occurring nutrient levels”; deleted subdivision A 3 c, which concerned soil conditioners, including polyelectrolytes; redesignated former subdivision A 3 d as subdivision A 3 c, and therein added “and a statement of added fertilizers, if any”; added subdivision A 3 e and redesignated former subdivision A 3 e as subdivision A 3 d; added subdivision A 5; in subsection B, deleted “or any fertilizer formulated for a consumer” following “prior to mixing”; and deleted subsection C, which read: “For horticultural growing media, a statement of added fertilizers, if any, shall be listed on the registration document and customer sales invoice.”

The 2022 amendments.

The 2022 amendments by cc. 538 and 539 are identical, and inserted “or digestate” twice in subdivision A 3 d.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 14.

§ 3.2-3611. (Effective July 1, 2022) Labeling.

1. 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:
      1. 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:
         1. Total Nitrogen (N) _____ % Available Phosphate (P205) _____ % Soluble Potash (K20) _____ %

            Click to view

         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;
      2. 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;
      3. For horticultural growing media, include a list of ingredients and other guarantees as required by regulation and a statement of added fertilizers, if any;
      4. When compost or digestate 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 or digestate;
      5. When an industrial co-product is used as an ingredient, identify the source material and percentage or other acceptable unit; and
      6. 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.
2. 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.
3. [Repealed.]
4. 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.”

History. 1994, c. 740, § 3.1-106.5; 1995, c. 104; 2008, c. 860; 2011, cc. 341, 353, 552, 564; 2022, cc. 538, 539.

§ 3.2-3612. Misbranding.

1. 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.
2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subsection B, in the first sentence, substituted “guarantor” for “person whose name is on the label,” inserted “sold to the consumer and,” deleted “of this section” following “subsection A” and added “not to exceed $5,000 per occurrence,” in the second sentence, substituted “inspected” for “sampled,” and added the last sentence.

§ 3.2-3613. Adulteration.

1. 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.
2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subsection B, in the first sentence, substituted “guarantor” for “person whose name is on the label” and inserted “sold to the consumer and,” in the second sentence, substituted “inspected” for “sampled,” and added the last sentence.

§ 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.

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

§ 3.2-3615. Plant food deficiency.

1. 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.
2. 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.
3. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in subsection B, deleted “registrant or” preceding “licensee,” and substituted “distributors” for “suppliers” and “obtain a license and register the altered or mixed product” for “obtain a registration or a license.”

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

1. 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.
2. 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.

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

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

1. 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.
2. 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.

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

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, § 11.

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

1. 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.
2. 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.
3. The Commissioner shall use the methods of sampling and analysis adopted by the Commissioner or the Board.
4. 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.
5. 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.

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

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

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

1. 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.
2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and designated the existing provisions of the section as subsection A; and added subsection B.

§ 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and deleted “In addition to the provisions of § 3.2-3623” from the beginning and made a related change.

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

1. 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.
2. 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.

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

The 2011 amendments.

The 2011 amendments by cc. 552 and 564 are identical, and in clause (i) in subsection A, deleted “registration” following “cancel the” and “contractor-applicator” following “license or.”

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

1. 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.
2. 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.

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

§ 3.2-3623. Repealed by Acts 2011, cc. 552 and 564, cl. 2.

Editor’s note.

Former § 3.2-3623, pertaining to notice of violations and penalty, was derived from Acts 1994, c. 740, § 3.1-106.17; 2008, c. 860.

§ 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.

History. 2011, cc. 552, 564.

§ 3.2-3625. Violations; civil penalties.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.).
6. 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.

History. 2011, cc. 552, 564.

§ 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.

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

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, § 11.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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

§ 3.2-3702. Registration; permitting of distributors.

1. 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.
2. 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.
3. 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.
4. 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.

History. 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.

1. 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.
2. 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.

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

§ 3.2-3704. Contractor permit.

1. 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.
2. 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.
3. 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.

History. 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.

1. 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.
2. 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.
3. 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.
4. 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.

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

§ 3.2-3706. Labeling.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. All liming material shall be labeled as registered with the Commissioner.
7. 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.
8. 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.
9. 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)  . . . . . . . .   %

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

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

1. 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.
2. The Commissioner shall distribute the results of official analyses of liming material and portions of official samples of liming material as provided in regulations.

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

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

1. 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.
2. 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.).
3. 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 .

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

§ 3.2-3709. Assessments for violations of chapter.

1. 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.
2. 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.
3. 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.
4. 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.

History. 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.

History. 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.

History. 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.).

History. 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.

History. 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.

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

§ 3.2-3715. Prohibited acts; penalty.

1. 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.
2. Any person who violates any provision of this chapter is guilty of a Class 3 misdemeanor.

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

Cross references.

As to punishment of Class 3 misdemeanors, see § 18.2-11 .

§ 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.

History. 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.

1. 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.
2. 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.

History. 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.

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

Cross references.

For similar provisions, see § 3.2-712.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

History. 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.

The 2018 amendments.

The 2018 amendment by c. 685 added the last sentence in subsections B through D; and added subsection E.

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

1. 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.
2. 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.

History. 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.

History. 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.

1. All nursery stock or plant products for sale or distribution shall be subject to inspection at any time.
2. 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.
3. 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.

History. 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.

History. 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.

1. 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.
2. 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.
3. Any order of the Commissioner under this section shall be carried out at the owner’s expense.

History. 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.

History. 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.

1. 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.
2. 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.

History. 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.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 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.).

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

§ 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.

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

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 33 provides: “That the regulations of the Pesticide Control Board shall be administered by the Board of Agriculture and Consumer Services and shall remain in full force and effect until the Board of Agriculture and Consumer Services promulgates regulations pursuant to the 31st enactment of this act.”

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 31, are identical, and deleted the definition of “Board.”

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

Research References.

Virginia Forms (Matthew Bender). No. 16-101 Residential Lease Agreement. No. 16-227 Covenants by Landlord as to Right to Lease Premises. No. 16-298 Insects and Pests.

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Agriculture, § 1.

§§ 3.2-3901 through 3.2-3903. Repealed by Acts 2012, cc. 803 and 835, cl. 32.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 33 provides: “That the regulations of the Pesticide Control Board shall be administered by the Board of Agriculture and Consumer Services and shall remain in full force and effect until the Board of Agriculture and Consumer Services promulgates regulations pursuant to the 31st enactment of this act.”

Former § 3.2-3901, pertaining to the Pesticide Control Board purpose, derived from Acts 2008, c. 860. Former § 3.2-3902, pertaining to membership; terms; quorum; and meetings, derived from Acts 1989, c. 575, § 3.1-249.28; 1992, c. 121; 2005, cc. 238, 282; 2008, c. 860. Former § 3.2-3903, pertaining to compensation and expenses, derived from Acts 2008, c. 860.

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

The Board shall have the following powers and duties:

1. Appoint advisory committees as necessary to implement this chapter;
2. Contract for research projects and establish priorities;
3. Consult with the Department of Environmental Quality regarding compliance with the applicable waste management regulations for the safe and proper disposal of pesticide concentrates, used pesticide containers, and unused pesticides;
4. Consult with the Virginia Department of Labor and Industry regarding compliance with the applicable standards and regulations needed to ensure safe working conditions for pest control and agricultural workers;
5. Consult with the Department of Wildlife Resources regarding standards for the protection of wildlife and fish and to further promote cooperation with respect to programs established by the Department of Wildlife Resources for the protection of endangered or threatened species;
6. Inform the citizens of the desirability and availability of nonchemical and less toxic alternatives to chemical pesticides and the benefits of the safe and proper use of pest control products while promoting the use of integrated pest management techniques and encouraging the development of nonchemical and less toxic alternatives to chemical pesticides;
7. Require that pesticides are adequately tested and are safe for use under local conditions;
8. Require that individuals who sell, store, or apply pesticides commercially are adequately trained and observe appropriate safety practices;
9. Cooperate, receive grants-in-aid, and enter into agreements with any federal, state, or local agency to promote the purposes of this chapter;
10. Consult with the Department of Health regarding compliance with public health standards;
11. Designate any pesticide as state special use or classified for restricted use; and
12. Restrict the distribution, possession, sale, or use of tributyltin compounds.

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

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” twice in subdivision 5.

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 3.2-3905. Repealed by Acts 2012, cc. 803 and 835, cl. 32.

Editor’s note.

Former § 3.2-3905, pertaining to staffing for the Pesticide Control Board, derived from Acts 2008, c. 860.

§ 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.

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

Law Review.

For a survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 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.

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

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

1. 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.
2. 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.
3. 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. 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.
4. 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.
5. 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.
6. 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.

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

Cross references.

As to punishment for Class 6 felonies, see § 18.2-10 .

§ 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.

History. 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.

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

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

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

1. 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.
2. 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.
3. 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.

History. 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.

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

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 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.

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

§ 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.

History. 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.

History. 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.

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 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.

History. 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.

History. 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.

1. 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.
2. 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.

History. 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.

History. 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.

History. 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.

History. 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.

History. 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.

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

§ 3.2-3924. Annual business license required.

1. 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.
2. 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.
3. An annual business license shall be required for each location or outlet that sells, distributes, stores, applies, or recommends for use any pesticide.

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

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 3.2-3925. Fees.

1. A nonrefundable annual licensing fee shall be required with each application for a pesticide business license.
2. 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.

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

§ 3.2-3926. Records.

1. As a condition of obtaining or renewing a license, each pesticide business required to be licensed shall maintain records as required by the Board.
2. 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.

History. 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.

1. 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.
2. 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.

History. 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.

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

§ 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.

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

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

1. 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.
2. 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.

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

Cross references.

As to the conditional exemption of regulations adopted under this section from the Administrative Process Act, see § 2.2-4006 .

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

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

1. 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.
2. 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.
3. 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.
4. 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.

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

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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

Cross references.

As to the conditional exemption of regulations adopted under this section from the Administrative Process Act, see § 2.2-4006 .

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

1. 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.
2. 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.
3. The Commissioner shall inform the applicant in writing of his decision within 30 days.

History. 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.

1. 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.
2. The Board may provide by regulation for the biennial payment of commercial applicator and registered technician certificate renewal fees.

History. 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.

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

§ 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.

History. 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.

1. 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 Wildlife Resources, 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.
2. 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.
3. 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.

History. 1987, c. 15, § 3.1-249.23; 1989, c. 575, § 3.1-249.60; 2008, c. 860; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in subsection A, last sentence.

§ 3.2-3937. Educational programs.

The State Water Control Board, the Board of Wildlife Resources, 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.

History. 1987, c. 15, § 3.1-249.24; 1989, c. 575, § 3.1-249.61; 2008, c. 860; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958, substituted “Board of Wildlife Resources” for “Board of Game and Inland Fisheries.”

§ 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.

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

§ 3.2-3939. Violations generally.

1. 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:
      1. The name and address of the manufacturer, registrant, or person for whom manufactured;
      2. The name, brand, or trademark under which said pesticide is sold; and
      3. 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:
      1. A skull and crossbones;
      2. The word “poison” shown prominently in red on a background of distinctly contrasting color; and
      3. 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.
2. 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.).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

History. 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.

1. 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.
2. 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.).
3. 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.
4. 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.
5. 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.

History. 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.

History. 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.

1. 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.
2. 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 .
3. 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.
4. 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.
5. 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.
6. 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.

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

The 2014 amendments.

The 2014 amendment by c. 354 in subdivision B 3 added the last sentence; in subsection C substituted “clerk of the circuit court of the city or county wherein the search was made” for “issuing officer”; deleted “to the issuing judicial officer” following “prior to its return” in subsection E; deleted “to the issuing judicial officer” following “executed and returned” in subsection F; and made minor stylistic changes.

§ 3.2-3943. Civil penalties; procedure.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.).

History. 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.

The 2016 amendments.

The 2016 amendment by c. 320, in subsection A, inserted “The Board may assess against” at the beginning and substituted “a civil penalty after providing written notice of the alleged violation” for “may be assessed a civil penalty by the Board” at the end of the first sentence, added the second and third sentences and deleted “with the chapter after notification of the violation” from the end of the subsection; in subsection B, inserted “No sooner than 30 days after providing written notice of the alleged violation pursuant to subsection A.”

Law Review.

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

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

1. 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.
2. 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.

History. 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.

History. 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.

1. 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 .
2. 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.
3. 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.

History. 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.

The 2016 amendments.

The 2016 amendment by c. 320, in subsection A, inserted “alleged” in the first sentence, and substituted the second sentence for the former second and third sentences, which read “Any party so notified shall be given an opportunity to be heard in accordance with regulations adopted by the Board. If the hearing appears to show a violation of this chapter or the regulations issued hereunder, the Commissioner may certify the facts to the Board or the proper prosecuting attorney and furnish the Board or that officer with a copy of the results of the investigation.”

§ 3.2-3947. Penalties.

1. 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.
2. 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.

History. 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.

Cross references.

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 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.

History. Code 1950, § 3-219.2; 1958, c. 483; 1966, cc. 9, 702, § 3.1-263; 1994, c. 577; 2008, c. 860; 2012, c. 297.

The 2012 amendments.

The 2012 amendment by c. 297 added the definitions of “Cool-season lawn and turf seed” and “Turf.”

§ 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.

History. 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.

1. 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.
2. 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.
3. 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.

History. 1994, c. 577, § 3.1-271.1; 2008, c. 860.

Cross references.

As to exemptions, generally, from the Administrative Process Act, see § 2.2-4002 .

§ 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.

History. 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.

History. 1994, c. 577, § 3.1-275.7; 2008, c. 860.

§ 3.2-4005. License required to market seed.

1. 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.
2. 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.
3. 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.

History. 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.

History. 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.

1. 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.
2. 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.

History. Code 1950, § 3-219.13; 1958, c. 483; 1966, c. 702, § 3.1-275; 1994, c. 577; 2008, c. 860.

Michie’s Jurisprudence.

For related discussion, see 3C M.J. Commercial Law, § 14.

§ 3.2-4008. Labeling and advertising requirements.

1. 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.
2. 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.
3. 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:
      1. The percentage of germination, exclusive of hard or dormant seed;
      2. The percentage of any hard or dormant seed;
      3. The month and year the test was completed to determine such percentages;
      4. The “total germination and hard seed” may be stated following the information required by subdivisions a and b; and
      5. 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.
4. 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:
      1. The percentage of germination, exclusive of hard or dormant seed;
      2. The percentage of any hard or dormant seed;
      3. The month and year the test was completed to determine the percentages in subdivisions a and b;
      4. The “total germination and hard seed” may be stated following the information in subdivisions a and b;
      5. The guarantor shall state separately on the label the percentage of dormant seed; and
      6. The words “below standard” in not less than eight-point type.
5. 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:
      1. The percentage of germination exclusive of hard or dormant seed;
      2. The percentage of any hard or dormant seed;
      3. The month and year the test was completed to determine the percentages in subdivisions a and b;
      4. The “total germination and hard seed” may be stated; and
      5. 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.
6. 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.
7. For seeds in preplanted containers, mats, tapes, or other planting devices:
   1. For flower seeds:
      1. 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;
      2. The month and year seed was tested or the year the seed was packaged;
      3. The quantity statement, except as provided by regulations;
      4. The name and address of the person who labels, sells, or offers to sell seed; and
      5. 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:
      1. The percentage of germination exclusive of hard seed; and
      2. 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.
8. 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:
      1. The percentage of germination exclusive of hard seed; and
      2. The percentage of any hard or dormant seed.
9. 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.
10. 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:
       1. The percentage of germination, exclusive of hard seed;
       2. The percentage of any hard seed;
       3. 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
       4. 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.
11. For transgenetic seed, in addition to any other requirements, the guarantor shall label all seed produced from transgenetic plant material pursuant to regulation.

History. 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.

The 2012 amendments.

The 2012 amendment by c. 297 added subdivision J 8 d and made related changes.

§ 3.2-4009. Lawn and turf seed mixture; registration and labeling.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

History. 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.

1. 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.
2. 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.

History. 1994, c. 577, § 3.1-275.3; 2008, c. 860.

§ 3.2-4011. Inspection.

1. 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.
2. The Commissioner shall promptly notify the person who transported, sold, or offered the seed or screenings for sale, or who otherwise violated this article.

History. 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.

History. 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.

History. 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.

1. 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.
2. 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.
3. 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.

History. 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:
   1. 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;
   2. 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;
   3. If there has been a false or misleading advertisement with regards to the seed;
   4. Consisting of, or containing prohibited noxious-weed seeds in any amount;
   5. Containing restricted noxious-weed seeds, except as prescribed by regulations;
   6. Containing weed seeds in excess of one percent by weight, except as prescribed by regulations;
   7. That have been treated and not labeled as required;
   8. 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;
   9. 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;
   10. 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;
   11. 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;
   12. Unless it conforms to the definition of a “lot”; and
   13. 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.

History. Code 1950, § 3-219.4; 1958, c. 483; 1966, cc. 9, 702, § 3.1-265; 1994, c. 577; 2008, c. 860; 2012, c. 297.

The 2012 amendments.

The 2012 amendment by c. 297 added the exception at the end of subdivision 1 a.

§ 3.2-4016. Exemptions from certain provisions.

1. 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.
2. 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.

History. 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.

History. 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.

1. 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.
2. 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.

History. 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.

History. 1994, c. 577, § 3.1-275.6; 2008, c. 860.

§ 3.2-4020. Penalty.

Any violation of this article is a Class 3 misdemeanor.

History. Code 1950, § 3-219.11; 1958, c. 483; 1966, c. 702, § 3.1-273; 1994, c. 577; 2008, c. 860.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 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.

History. 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.

History. 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.

Editor’s note.

Acts 2011, cc. 691 and 714, cl. 2 provides: “That the provisions of this act providing for (i) staggered terms for board, council, or commission members and (ii) two-year terms for chairmen appointed by the Governor shall not affect current members or chairmen whose terms have not expired as of July 1, 2011.”

The 2011 amendments.

The 2011 amendments by cc. 691 and 714 are identical, and in the first paragraph, added “and submitted at least 90 days before the expiration of the member’s term for which the nominations are being provided” to the end of the third sentence, and added the fourth sentence.

§ 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.

History. 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.

History. 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.

History. 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.

1. 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.
2. Any person who violates this section is guilty of a Class 3 misdemeanor. Each violation shall be a separate offense.

History. Code 1950, § 3-227; 1966, c. 702, § 3.1-283; 1980, c. 413; 2008, c. 860.

Cross references.

As to punishment for Class 3 misdemeanors, see § 18.2-11 .

§ 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.

History. Code 1950, § 3-228; 1966, c. 702, § 3.1-284; 2008, c. 860.

§§ 3.2-4100 through 3.2-4111.

Repealed by Acts 2012, cc. 803 and 835, cl. 23.

Cross references.

For current provisions pertaining to seed potato standards, see Article 3 (§ 3.2-1816 et seq.) of Chapter 18.

Editor’s note.

Acts 2012, cc. 803 and 835, cl. 24 provides: “That all regulations, rules, and standards adopted by the Seed Potato Board pursuant to Chapter 41 (§ 3.2-4100 et seq.) of Title 3.2 of the Code of Virginia that are in effect as of July 1, 2012, shall be administered by the Potato Board and shall remain in full force and effect until the Potato Board adopts regulations pursuant to the 22nd enactment of this act.”

Acts 2012, cc. 803 and 835, cl. 26 provides: “That the terms of the members of the Seed Potato Board shall expire on July 1, 2012.”

Former § 3.2-4100, pertaining to definitions, derived from Code 1950, § 3-228.3; 1950, p. 1029; 1966, cc. 686, 702, § 3.1-287; 1985, c. 448; 2008, c. 860. Former § 3.2-4101, pertaining to the Seed Potato Board; purpose, derived from 2008, c. 860. Former § 3.2-4102, pertaining to membership; terms; quorum; meetings, derived from Code 1950, § 3-228.6; 1950, p. 1029; 1966, cc. 686, 702, § 3.1-290; 1972, c. 98; 1978, c. 540; 1985, c. 448; 2001, c. 322; 2008, c. 860. Former § 3.2-4103, pertaining to compensation and expenses, derived from 2008, c. 860. Former § 3.2-4104, pertaining to the powers and duties of the Seed Potato Board, derived from Code 1950, §§ 3-228.5, 3-228.6; 1950, p. 1029; 1966, cc. 686, 702, §§ 3.1-289, 3.1-290; 1972, c. 98; 1978, c. 540; 1985, c. 448; 2001, c. 322; 2008, c. 860; 2009, c. 107. Former § 3.2-4105, pertaining to standards required of seed potatoes, derived from Code 1950, § 3-228.4; 1950, p. 1029; 1958, c. 94; 1966, cc. 686, 702, § 3.1-288; 2008, c. 860. Former § 3.2-4106, pertaining to exempted sales, derived from Code 1950, § 3-228.10; 1950, p. 1030; 1958, c. 94; 1966, c. 702, § 3.1-294; 2008, c. 860. Former § 3.2-4107, pertaining to inspection of potatoes; right of entry; fees; records required, derived from Code 1950, § 3-228.8; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-292; 1978, c. 540; 1980, c. 308; 2008, c. 860. Former § 3.2-4108, pertaining to “Stop sale” order; seizure; condemnation, derived from Code 1950, § 3-228.8; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-292; 1978, c. 540; 1980, c. 308; 2008, c. 860. Former § 3.2-4109, pertaining to authority of Commissioner to permit sale of substandard potatoes and experimental varieties, derived from Code 1950, § 3-228.9; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-293; 2008, c. 860. Former § 3.2-4110, pertaining to notice and hearings, derived from Code 1950, § 3-228.11; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-295; 1978, c. 540; 2008, c. 860. Former § 3.2-4111, pertaining to penalties, derived from Code 1950, § 3-228.11; 1950, p. 1030; 1966, cc. 686, 702, § 3.1-295; 1978, c. 540; 2008, c. 860.

§ 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 with a concentration of tetrahydrocannabinol that is greater than that allowed by federal law.

“Deal” means to temporarily possess industrial hemp grown in compliance with state or federal law that (i) has not been processed and (ii) was not grown and will not be processed by the person temporarily possessing it.

“Dealer” means any person who is registered pursuant to subsection A of § 3.2-4115 to deal in industrial hemp. “Dealer” does not include a retail establishment that sells or offers for sale a hemp product.

“Dealership” means the location at which a dealer stores or intends to store the industrial hemp in which he deals.

“Federally licensed hemp producer” means a person who holds a hemp producer license issued by the U.S. Department of Agriculture pursuant to 7 C.F.R. Part 990.

“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 a product, including any raw materials from industrial hemp that are used for or added to a food or beverage product, that contains industrial hemp and has completed all stages of processing needed for the product.

“Industrial hemp” means any part of the plant Cannabis sativa, including seeds thereof, whether growing or not, with a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law. “Industrial hemp” includes an industrial hemp extract that has not completed all stages of processing needed to convert the extract into a hemp product.

“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 or a federally licensed hemp producer is growing or intends to grow industrial hemp.

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 3 provides: “That the Virginia Department of Agriculture and Consumer Services (the Department), by December 1, 2019, shall report to the General Assembly on (i) the fiscal impact of the growth of the industrial hemp industry in Virginia upon the Department’s registration program and (ii) any need to alter the registration fee charged by the Department.”

Acts 2019, cc. 653 and 654, cl. 4 provides: “That the Virginia Department of Agriculture and Consumer Services, by December 1, 2019, shall report to the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources on the viability of markets for Virginia industrial hemp growers, the types of products made from industrial hemp that can be produced in Virginia, and the economic benefits and costs of production of such products.”

Acts 2019, cc. 653 and 654, cl. 5 provides: “That the Secretary of Agriculture and Forestry and the Secretary of Health and Human Resources shall, by November 1, 2019, report to the General Assembly on the appropriate standards, if any, for the production of an oil with a tetrahydrocannabinol concentration of no greater than 0.3 percent that is derived from industrial hemp, as defined in § 3.2-4112 of the Code of Virginia as amended by this act.”

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, c. 745, cl. 1 provides: “§ 1. That the Virginia Department of Agriculture and Consumer Services shall convene a working group to assess the opportunities for development and manufacturing in the industrial hemp industry. The working group shall consider (i) federal and state requirements, (ii) key drivers and challenges, (iii) anticipated job growth and wage expectations, (iv) talent and skill requirements, (v) site and building needs, and (vi) manufacturing companies and supply chain requirements. The working group shall consist of the chief executive of the Virginia Economic Development Partnership or his designee; the members of the Tobacco Region Revitalization Commission appointed pursuant to Chapter 31 (§ 3.2-3100 et seq.) of Title 3.2 of the Code of Virginia; representatives of the Virginia Agribusiness Council and the Virginia Farm Bureau, who shall be involved in the growing or production of industrial hemp; and the Chief Workforce Development Advisor appointed pursuant to § 2.2-435.6 of the Code of Virginia.

“§ 2. The Virginia Department of Agriculture and Consumer Services shall report by November 30, 2020, to the Chairmen of the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources on the analysis required pursuant to § 1 of this act.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the section.

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and inserted the definitions of “Cannabis sativa product,” “Deal,” “Dealer,” and “Dealership” and deleted the definitions of “Higher education industrial hemp research program” and “Virginia industrial hemp research program”; rewrote the definition for “Hemp product,” which read: “ ‘Hemp product’ means a product made from industrial hemp”; rewrote the definition for “Industrial hemp,” which read: “ ‘Industrial hemp’ means all parts and varieties of the plant Cannabis sativa, whether growing or not, that contain a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law”; and in the definition for “Process,” substituted “hemp product” for “marketable form.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, in the definition for “Cannabis sativa product,” deleted “including seeds thereof and any derivative, extract, cannabinoid, isomer, acid, salt, or salt of an isomer, whether growing or not” following “plant Cannabis sativa”; in the definition for “Deal,” substituted “temporarily possess” for “buy” and substituted “that (i) has not been processed and (ii) was not grown and will not be processed by the person temporarily possessing it” for “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”; in the definition for “Dealer,” substituted “a retail establishment that sells or offers for sale a hemp product” for “(i) a grower, (ii) a processor, or (iii) any person who buys industrial hemp for personal use or retail sale in Virginia”; added the definition for “Federally licensed hemp producer‘; in the definition for “Hemp product,” substituted “a product, including any raw materials from industrial hemp that are used for or added to a food or beverage product,” for “any finished product that is otherwise lawful and” and substituted “and has completed all stages of processing needed for the product” for “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”; in the definition of “Industrial hemp,” deleted “and any derivative, extract, cannabinoid, isomer, acid, salt, or salt of an isomer” following “seeds thereof” and added the last sentence; and in the definition of “Production field,” inserted “or a federally licensed hemp producer.”

§ 3.2-4113. Production of industrial hemp lawful.

1. It is lawful for a grower, his agent, or a federally licensed hemp producer 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 federally licensed hemp producer or grower or his agent shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247 , 18.2-248 , 18.2-248 .01, 18.2-248.1 , or 18.2-250 for the possession or growing of industrial hemp or any Cannabis sativa with a tetrahydrocannabinol concentration that does not exceed the total delta-9 tetrahydrocannabinol concentration percentage established in federal regulations applicable to negligent violations located at 7 C.F.R. 990.6(b)(3). No dealer or his agent or processor or his agent shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247 , 18.2-248, 18.2-248.01 , 18.2-248.1 , or 18.2-250 or issued a summons or judgment for the possession, 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.
2. Nothing in this chapter shall be construed to authorize any person to violate any federal law or regulation.
3. No person shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247 , 18.2-248 , 18.2-248 .01, 18.2-248.1 , or 18.2-250 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.

History. 2015, cc. 158, 180; 2016, cc. 61, 170; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, cc. 110, 550, 551.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: “That, except for (i) the provisions of Article 29 (§ 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 (§ 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1 , 16.1-228 , 16.1-278.8:01 , 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly.”

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: “That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 29 (§ 2.2-2499.1 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101 .1, 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 (§ 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1 , 16.1-228 , 16.1-278.8:01 , 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021.”

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course.”

The 2016 amendments.

The 2016 amendments by cc. 61 and 170 are identical, and in subsection A, inserted “or 3.2-4117” in the first two sentences, substituted “any lawful purpose, including the manufacture of industrial hemp products or scientific, agricultural, or other research related to other lawful applications for industrial hemp” for “the purpose of research as part of the industrial hemp research program,” substituted “the possession, cultivation, or manufacture of industrial hemp plant material and seeds or industrial hemp products” for “(i) the possession or cultivation of industrial hemp plant material or seeds as part of the industrial hemp research program or (ii) the manufacture of industrial hemp products as part of the industrial hemp research program”; inserted “or a grower licensed pursuant to § 3.2-4117” at the end of subsection C; and made minor stylistic changes.

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the first two sentences in subsection A, which formerly read: “It is lawful for a person licensed pursuant to § 3.2-4115 or 3.2-4117 to cultivate, produce, or otherwise grow industrial hemp in the Commonwealth for any lawful purpose, including the manufacture of industrial hemp products or scientific, agricultural, or other research related to other lawful applications for industrial hemp. No person licensed pursuant to § 3.2-4115 or 3.2-4117 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, cultivation, or manufacture of industrial hemp plant material and seeds or industrial hemp products”; in subsection B, deleted “that has been adopted in Virginia under this chapter” following “industrial hemp” in the second sentence; and in subsection C, substituted “production field or process site” for “licensed grower or a grower licensed pursuant to § 3.2-4117.”

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and in subsection A, inserted “a dealer or his agent to deal in” and deleted “including the manufacture of a hemp product or scientific, agricultural, or other research related to other lawful applications for industrial hemp” at the end of the first sentence and inserted “dealer or his agent” and “dealing” in the second sentence; in subsection B, deleted the second sentence, which read: “If any part of this chapter conflicts with a provision of federal law relating to industrial hemp, the federal provision shall control to the extent of the conflict”; and in subsection C, inserted “dealership.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, in subsection A, in the first sentence, inserted “or a federally licensed hemp producer,” in the second sentence, substituted “federally licensed hemp producer or grower or his agent” for “grower or his agent, dealer or his agent, or processor or his agent,” inserted “issued a summons or judgment under” preceding “18.2-250.1,” deleted “dealing, or processing” preceding “of industrial hemp” and added “or any Cannabis sativa with a tetrahydrocannabinol concentration that does not exceed the total delta-9 tetrahydrocannabinol concentration percentage established in federal regulations applicable to negligent violations located at 7 C.F.R. 990.6(b)(3)” at the end and added the third sentence; in subsection C, inserted “issued a summons or judgment under” preceding “18.2-250.1”; and made stylistic changes.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subsections A and C, substituted “Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247 , 18.2-248 , 18.2-248 .01, 18.2-248.1 , or 18.2-250 ” for “§ 18.2-247 , 18.2-248, 18.2-248.01 , 18.2-248.1 , 18.2-250 , or 18.2-250.1 .”

§ 3.2-4114. Regulations.

1. 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.
2. Upon publication by the U.S. Department of Agriculture in the Federal Register of any final rule regarding industrial hemp that materially expands opportunities for growing, producing, or dealing in industrial hemp in the Commonwealth, the Board shall immediately adopt amendments conforming Department regulations to such federal final rule. Such adoption of regulations by the Board shall be exempt from the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2020, c. 620.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

That the Board of Agriculture and Consumer Services shall promulgate the regulations required by subsections C and D of § 3.2-4114 of the Code of Virginia, as amended by this act, to become effective by July 1, 2023. The provisions of this enactment shall become effective in due course.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 16 provides: “That the Board of Agriculture and Consumer Services shall promulgate the regulations required by subsections C and D of § 3.2-4114 of the Code of Virginia, as amended by this act, to become effective by July 1, 2023. The provisions of this enactment shall become effective in due course.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the section, which formerly read: “The Board may adopt regulations pursuant to this chapter as necessary to (i) license persons to grow industrial hemp or (ii) administer the industrial hemp research program.”

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and inserted “deal in.”

The 2020 amendments.

The 2020 amendment by c. 620, effective April 2, 2020, inserted subsection B and designated the preceding paragraph as subsection A.

§ 3.2-4114.1. Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

Editor’s note.

Former § 3.2-4114.1, pertaining to higher education industrial hemp research programs and the Virginia industrial hemp research program, derived from 2018, cc. 689, 690.

§ 3.2-4114.2. Authority of Commissioner; notice to law enforcement; report.

1. The Commissioner may charge a nonrefundable fee not to exceed $250 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.
2. The Commissioner shall adopt regulations establishing a fee structure for registration. With the exception of § 2.2-4031 , no provision of the Administrative Process Act (§ 2.2-4000 et seq.) or public participation guideline adopted pursuant thereto shall apply to the adoption of any regulation pursuant to this subsection. However, prior to adopting any regulation pursuant to this subsection, the Commissioner shall review the recommendation of an advisory panel that shall consider the economic impact of any proposed fee amount on the Commonwealth’s industrial hemp industry. The advisory panel shall, at a minimum, include (i) an agribusiness representative or organization, (ii) a farming representative or organization, and (iii) a hemp industry representative or organization. Prior to adopting any regulation pursuant to this subsection, the Commissioner shall publish a notice of opportunity to comment in the Virginia Register of Regulations and post the action on the Virginia Regulatory Town Hall. Such notice shall contain (a) a summary of the proposed regulation; (b) the text of the proposed regulation; and (c) the name, address, and telephone number of the agency contact person responsible for receiving public comments. Such notice shall be made at least 60 days in advance of the last date prescribed in such notice of submittals of public comment. The legislative review provisions of subsections A and B of § 2.2-4014 shall apply to the promulgation or final adoption process of regulations pursuant to this subsection. The Commissioner shall consider and keep on file all public comments received for any regulation adopted pursuant to this subsection.
3. The Commissioner may establish an application period for a registration or renewal of registration allowed under this chapter.
4. The Commissioner shall notify the Superintendent of State Police of each registration issued by the Commissioner under this chapter and each license submitted to the Commissioner by a federally licensed hemp producer.
5. The Commissioner shall forward a copy or appropriate electronic record of each registration issued by the Commissioner under this chapter and each license submitted to the Commissioner by a federally licensed hemp producer to the chief law-enforcement officer of the county or city where industrial hemp will be grown, dealt, or processed.
6. The Commissioner may monitor the industrial hemp grown, dealt, or processed by a person registered pursuant to subsection A of § 3.2-4115 and provide for random sampling and testing of the industrial hemp in accordance with any criteria established by the Commissioner and 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.
7. 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.
8. Notwithstanding the provisions of subsection G, 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.
9. The Commissioner shall advise 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.
10. 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.
11. The Commissioner may establish a corrective action plan to address a negligent violation of any provision of this chapter.

History. 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 3 provides “That the Virginia Department of Agriculture and Consumer Services (the Department), by December 1, 2019, shall report to the General Assembly on (i) the fiscal impact of the growth of the industrial hemp industry in Virginia upon the Department’s registration program and (ii) any need to alter the registration fee charged by the Department.”

Acts 2019, cc. 653 and 654, cl. 5 provides: “That the Secretary of Agriculture and Forestry and the Secretary of Health and Human Resources shall, by November 1, 2019, report to the General Assembly on the appropriate standards, if any, for the production of an oil with a tetrahydrocannabinol concentration of no greater than 0.3 percent that is derived from industrial hemp, as defined in § 3.2-4112 of the Code of Virginia as amended by this act.”

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 99 C, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 3.2-4114.2 and 3.2-4115, Code of Virginia, the Commissioner shall charge an annual nonrefundable fee of $150 on each application for registration, or renewal of registration, as an industrial hemp grower, an annual nonrefundable fee of $200 on each application for registration as an industrial hemp processor, and an annual nonrefundable fee of $250 for registration as an industrial hemp dealer pursuant to Chapter 41 of Title 3.2, Code of Virginia.”

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and added subsection F, deleted former subsection B, pertaining to the establishment of a minimum size for a production field that qualified a person for a grower registration and deleted former subsection J pertaining to annual report on the research program by Commissioner to the Governor and General Assembly; in subsection A, delete “(i)” preceding “any application” and substituted “The Commissioner may charge a nonrefundable fee for the” for “and (ii)”; in subsection B, inserted “dealerships”; in subsection C, inserted “dealt”; in subsection D, inserted “dealt,” “dealer” and “dealership”; in subsection E, inserted “dealer” twice, substituted “in which the dealer deals, or that” for “or,” and added “or any Cannabis sativa product that the processor produces” at the end; in subsection G, substituted “shall advise the Attorney General of the United States and” for “may advise” and inserted “with a culpable mental state greater than negligence,” “a dealer deals in” and “or a processor produces a Cannabis sativa product”; in subsection H, substituted “the industrial hemp industry” for “a higher education industrial hemp research program or the Virginia industrial hemp research program”; in subsection I, substituted “establish a corrective action plan to address a negligent violation of any provision of this chapter” for “cooperatively seek funds from public and private sources to implement a higher education industrial hemp research program or the Virginia industrial hemp research program”; and made stylistic changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, in subsection A, substituted “$250” for “$50”; inserted subsections B and C; in subsection D, substituted “each registration issued by the Commissioner under this chapter and each license submitted to the Commissioner by a federally licensed hemp producer” for “the locations of all industrial hemp production fields, dealerships, and process sites”; in subsection E, inserted “and each license submitted to the Commissioner by a federally licensed hemp producer”; in subsection F, in the first sentence, substituted “may monitor” for “shall be responsible for monitoring,” substituted “provide for random sampling and” for “shall provide for random” and inserted “in accordance with any criteria established by the Commissioner and”; in subsection H, substituted “subsection G” for “subsection E”; in subsection I, deleted “the Attorney General of the United States and” following “shall advise”; and made stylistic changes.

§ 3.2-4115. Issuance of registrations; exemption.

1. The Commissioner shall establish a registration program to allow a person to grow, deal in, or process industrial hemp in the Commonwealth.
2. 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.
3. 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.
4. All records, data, and information filed in support of a registration application submitted pursuant to this section and all information on a hemp producer license issued by the U.S. Department of Agriculture submitted to the Commissioner 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.).
5. Notwithstanding the provisions of subsection B, no federally licensed hemp producer shall be required to apply to the Commissioner for a registration to grow industrial hemp in the Commonwealth. Each federally licensed hemp producer shall submit to the Commissioner a copy of his hemp producer license issued by the U.S. Department of Agriculture pursuant to 7 C.F.R. Part 990.

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 99 C, effective for the biennium ending June 30, 2022, provides: “Notwithstanding the provisions of §§ 3.2-4114.2 and 3.2-4115, Code of Virginia, the Commissioner shall charge an annual nonrefundable fee of $150 on each application for registration, or renewal of registration, as an industrial hemp grower, an annual nonrefundable fee of $200 on each application for registration as an industrial hemp processor, and an annual nonrefundable fee of $250 for registration as an industrial hemp dealer pursuant to Chapter 41 of Title 3.2, Code of Virginia.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the section.

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and in subsection A, inserted “deal in” and deleted “in a controlled fashion solely and exclusively as part of a higher education industrial hemp research program or the Virginia industrial hemp research program” from the end; in subsection B, inserted “deal in” and substituted “in the Commonwealth” for “as part of a higher education industrial hemp research program or the Virginia industrial hemp research program”; in subdivision B 2, inserted clause (ii), redesignated former clause (ii) as clause (iii) and inserted “dealing in”; in subdivisions B 4 and 5, inserted “dealt in”; deleted former subdivision B 5, which read: “If the applicant intends to participate in a higher education industrial hemp research program, documentation of an agreement between an institution of higher education and the applicant that states that the applicant, if registered pursuant to subsection A, will be a participant in the higher education industrial hemp research program managed by that institution of higher education”; rewrote subdivision B 6, which read: “If the applicant intends to participate in the Virginia industrial hemp research program, a statement of the approximate square footage or acreage of the location he intends to use as a production field or process site and a description of the research he plans to conduct to advance the industrial hemp industry”; and made stylistic changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, deleted “not to exceed $50” at the end of subdivision A 8 and at the end of subsection C; inserted “and all information on a hemp producer license issued by the U.S. Department of Agriculture submitted to the Commissioner pursuant to this section” in subsection D; and added subsection E.

§ 3.2-4116. Registration conditions.

1. A person who is not a federally licensed hemp producer 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.
2. A person issued a registration pursuant to subsection A of § 3.2-4115 shall:
   1. Maintain records that reflect compliance with this chapter;
   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.

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the section.

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and in subsection B, deleted subdivisions 6 and 7, pertaining to participants in the higher education industrial hemp research program and the Virginia industrial hemp research program, respectively; in subsection A and subdivision B 1, inserted “dealing in” following “growing”; in subdivision B 1, inserted “or federal”; in subdivision B 2, inserted “dealing”; in subdivision B 3, inserted “dealership” and “or dealership”; in subdivision B 4, inserted “dealer’s” and “dealer”; in subdivision B 5, inserted “dealer,” “the dealer deals in,” “following any re-sampling and retesting as authorized pursuant to the provisions of § 3.2-4114.2” and “or any Cannabis sativa product that the processor produces” at the end; and made stylistic changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, inserted “who is not a federally licensed hemp producer” in subsection A and deleted “and with all other state or federal laws regulating the growing, dealing in, or processing of industrial hemp” at the end of subdivision B 1.

§ 3.2-4117. Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

Editor’s note.

Former § 3.2-4117, pertaining to additional industrial hemp registration, derived from 2015, cc. 158, 180; 2016, cc. 61, 170; 2018, cc. 689, 690.

§ 3.2-4118. Forfeiture of industrial hemp grower, dealer, or processor registration; violations.

1. 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.
2. 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.
3. 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. The Commissioner shall not deem a grower negligent if such grower makes reasonable efforts to grow industrial hemp and grows Cannabis sativa with a tetrahydrocannabinol concentration that does not exceed the total delta-9 tetrahydrocannabinol concentration percentage established in federal regulations applicable to negligent violations located at 7 C.F.R. 990.6(b)(3).
4. 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.
5. 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.
6. 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.

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and rewrote the section.

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and in subsection A, inserted “with a culpable mental state greater than negligence”; in subsection B, inserted “dealer”; rewrote subsection C, which read: “The Commissioner may revoke any registration of any grower or processor who has pled guilty to, or been convicted of, a felony”; added subsections D through F; and made stylistic changes.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, added the last sentence in subsection C.

§ 3.2-4119. Eligibility to receive tobacco settlement funds.

Industrial hemp growers, dealers, or processors registered under this chapter or federally licensed hemp producers may be eligible to receive funds from the Tobacco Indemnification and Community Revitalization Fund established pursuant to § 3.2-3106.

History. 2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

Editor’s note.

Acts 2019, cc. 653 and 654, cl. 6 provides: “That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice.”

The 2018 amendments.

The 2018 amendments by cc. 689 and 690 are identical, and substituted “growers or processors registered” for “growers licensed.”

The 2019 amendments.

The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and inserted “dealers.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, inserted “or federally licensed hemp producers.”

§ 3.2-4120. Repealed by Acts 2018, cc. 689 and 690, cl. 2.

Editor’s note.

Former § 3.2-4120, which created the Industrial hemp research program, derived from Acts 2015, cc. 158, 180.

§ 3.2-4121. Virginia Industrial Hemp Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Industrial Hemp 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.

History. 2020, cc. 659, 660.

Editor’s note.

Acts 2020, cc. 659 and 660, cl. 2 provides: “That the Secretary of Agriculture and Forestry, in consultation with the Secretary of Administration, shall by November 1, 2020, report to the Governor and the General Assembly a plan for the long-term sustainability of funding for the industrial hemp program, including consideration of the cost of testing the tetrahydrocannabinol concentration of hemp crops grown in Virginia as required by state or federal law.”

Acts 2020, cc. 659 and 660, cl. 3 provides: “That the Department of Agriculture and Consumer Services shall, by November 1, 2020, report to the Chairmen of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources regarding recommended legislative or regulatory amendments necessary to (i) allow a registered industrial hemp grower to grow industrial hemp with a tetrahydrocannabinol concentration of no greater than one percent and (ii) authorize the Department to modify its existing industrial hemp program as quickly and efficiently as possible to respond to any final regulation adopted by the U.S. Department of Agriculture regarding the domestic production of hemp.”

Acts 2020, cc. 659 and 660, cl. 4 provides: “That nothing in this act shall be construed to prohibit the Department of Agriculture and Consumer Services from adopting a tiered approach to testing of tetrahydrocannabinol concentrations at the processor level if such approach is not prohibited by federal law or by any rule or regulation of the U.S. Department of Agriculture.”

Effective date.

Acts 2020, cc. 659, 660, became effective April 6, 2020, by emergency clause.

§ 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.

History. 1999, cc. 714, 754, § 3.1-336.1; 2008, c. 860.

Cross references.

As to powers of investigators with office of the Attorney General with regard to enforcement of tobacco laws, see § 2.2-509.1 .

As to exclusions from the Virginia Freedom of Information Act for certain records pertaining to administrative investigations, see § 2.2-3705.3 .

As to venue for criminal violations of this chapter, see § 19.2-245.01 .

As to monthly reports of tobacco product manufacturers, see § 58.1-1008.1 .

§ 3.2-4201. Requirements on tobacco product manufacturers; escrow of funds; civil penalties for violations.

1. 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):

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2. 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.
3. 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.

Year Amount 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

History. 1999, cc. 714, 754, § 3.1-336.2; 2004, c. 1029; 2005, cc. 4, 870; 2008, c. 860.

Cross references.

As to confidentiality of tax information, see § 58.1-3 .

As to Attorney General’s and Tax Commissioner’s authority to request and share information, see § 58.1-3.2 .

Michie’s Jurisprudence.

For related discussion, see For related discussion, 17 M.J. Escrow, § 1.

§ 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.

History. 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.).

History. 2005, cc. 899, 901, § 3.1-336.2:2; 2008, c. 860; 2016, c. 305.

Editor’s note.

Acts 2016, c. 305, cl. 3 provides: “That this act shall in no way alter or affect any (i) tax credit or tax benefit or other tax attribute allowed or earned under any section repealed by this act or (ii) tax liability or obligation pursuant to any such section.”

The 2016 amendments.

The 2016 amendment by c. 305 deleted “less the aggregate limitation for incentive payments to all small tobacco product manufacturers for the relevant year due from the escrow funds pursuant to § 58.1-439.15:01” at the end of the first sentence and deleted “and after the actual incentive payments pursuant to § 58.1-439.15:01 have been made from the escrow funds in the escrow account” following “After such withdrawal” and substituted “3 (§ 3.2-4204 et seq.)” for “Article 3 (§ 3.2-4204 et seq.) of this chapter” in the second paragraph.

§ 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.

History. 2003, c. 798, § 3.1-336.3; 2004, c. 1029; 2006, c. 674; 2008, c. 860.

Cross references.

As to exclusions from the Virginia Freedom of Information Act for records relating to administrative investigations, see § 2.2-3705.3 .

As to confidentiality of tax information, see § 58.1-3 .

§ 3.2-4205. Certifications.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

History. 2003, c. 798, § 3.1-336.4; 2006, c. 31; 2008, cc. 758, 860.

Editor’s note.

Acts 2008, c. 758, amended former § 3.1-336.4, from which this section is derived. Pursuant to § 30-152, the 2008 amendment by c. 758 has been given effect in this section as set out above by inserting “requesting such information as the Attorney General deems reasonably necessary to enable him to make the determinations required in § 3.2-4206,” and the clause (i) and clause (ii) designations in subsection A and adding subdivision D 5.

§ 3.2-4206. Directory of cigarettes approved for stamping and sale.

1. 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.
2. 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.
3. 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.
4. 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.

History. 2003, c. 798, § 3.1-336.5; 2008, cc. 758, 860.

Cross references.

As to confidentiality of tax information, see § 58.1-3 .

Editor’s note.

Acts 2008, c. 758, amended former § 3.1-336.5, from which this section is derived. Pursuant to § 30-152, the 2008 amendment by c. 758 has been given effect in this section as set out above by inserting clause (i), the clause (ii) designation, and substituting “A through D” for “A and C” in subdivision A 1; inserting clauses (iii) and (iv) and adding the second paragraph in subdivision A 2; inserting “or in the case of any participating manufacturer” in subsection C; and making related changes.

§ 3.2-4206.01. List of persons ineligible to be authorized holders.

1. 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.
2. 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.
3. 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.
4. 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.

History. 2015, cc. 738, 754.

§ 3.2-4206.1. Bond requirement for newly qualified and elevated-risk nonparticipating manufacturers.

1. 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.
2. 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.
3. 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.
4. 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.