HD43 - The Revision of Title 3.1 of the Code of Virginia


Executive Summary:
INTRODUCTION

Title 3.1 (Agriculture, Horticulture and Food) is the statutory authority under which the Department of Agriculture and Consumer Services, the Board of Agriculture and Consumer Services, and the various commodity-related boards promote and regulate agricultural and horticultural industries, protect food supplies, and ensure the proper care of domestic animals. During the more than 40 years since the last revision of this title, it has become necessary to: (i) organize the laws in more logical manner; (ii) remove obsolete and duplicative provisions; and (iii) improve the structure and clarity of the agriculture statutes.

ORGANIZATION OF TITLE 3.2

Proposed Title 3.2 (Agriculture, Animal Care, and Food) consists of 65 chapters divided into five subtitles: Subtitle I (General Provisions; Protection and Promotion of Agriculture); Subtitle II (Boards, Councils, Foundations, and Commissions); Subtitle III (Production and Sale of Agricultural Products); Subtitle IV (Food and Drink; Weights and Measures); and Subtitle V (Domestic Animals).

Subtitle I contains Chapters 1 through 10 and addresses the preservation of agricultural lands and the promotion of the agricultural industry. In addition to setting out the duties and responsibilities of the Department of Agriculture and Consumer Services, the Commissioner of Agriculture and Consumer Services, and the Office of Consumer Affairs, the first chapter includes several new provisions. These sections provide title-wide definitions and the authority to adopt regulations governing the conduct of referenda and replace existing sections throughout the current title. Proposed Chapter 2 (Preservation of Farm and Forest Lands) has been created by combining existing Chapter 3.3 (Office of Farmland Preservation) and Chapter 3.2 (Protection of Farm and Forest Lands) as articles within this new chapter. Subtitle I also includes the agricultural stewardship statutes that currently appear in Title 10.1 (Conservation). These provisions were moved to this title because the Commissioner of Agriculture and Consumer Services is charged with carrying out this law.

Subtitle II contains Chapters 11 through 31 and establishes the various commodity-related boards, councils, and foundations formed to promote the agricultural industry in the Commonwealth. The subtitle is divided in Parts A, B, C, and D. Part A consists of Chapter 11 (General Provisions). It begins with a listing of the special funds associated with these various collegial bodies and the reporting requirements for commodity boards. Part B contains all the commodity boards and prescribes their powers and duties. These boards are authorized to conduct a referendum to determine whether a tax should be imposed on each producer of the particular commodity. The proceeds generated from the tax are deposited in a special fund used to support research, education, publicity, and development of that sector of the industry. In keeping with current practice, each fund has been formally established in its respective chapter as a special nonreverting fund. While these funds already exist, the new language provides that the interest earned on the moneys in the fund will remain in the fund, and not revert to the general fund. Part C contains five chapters, with each chapter devoted to a board, council, or foundation associated with a specific product. One of these, the Wine Board (Chapter 30), is unique in its authority to engage in revenue-producing activities such as charging entrance and participation fees for events. Finally, Part D contains Chapter 31 (Tobacco Indemnification and Community Revitalization Commission), which creates the Tobacco Indemnification and Community Revitalization Commission. The Commission is responsible for determining which tobacco farmers should receive moneys from the Master Settlement Agreement and distributing the funds to the farmers and tobacco-dependent communities for community revitalization.

Subtitle III contains Chapters 32 through 50 and provides for the production and sale of agricultural products through a system of grading, licensing, certification, and registration. The sections in these chapters have been organized in a similar sequence, with a definitions section placed first, followed by agency administrative responsibilities, licensing or registration requirements, enforcement provisions and, finally, penalties.

Subtitle IV contains Chapters 51 through 58 and sets standards for consumer protection. These laws: (i) prescribe standards for ensuring the wholesomeness and safety of food products, including proper labeling practices; and (ii) protect the consumer by establishing standards for the instruments and devices used in weighing and measuring commodities.

Subtitle V contains Chapters 59 through 65 and provides for the regulation of domestic animals in the Commonwealth. Chapter 59 (General Provisions) is a new chapter that includes subtitle-wide definitions and describes the general powers of the State Veterinarian. Chapter 60 (Livestock and Poultry) includes the powers and duties of the Board, Commissioner, and State Veterinarian to control and eradicate contagious or infectious diseases affecting livestock and poultry. Chapter 61 (Cattle Branding and Registration) sets out the requirements for branding and registration of the brand of cattle. Chapters 62 (Equine Activity Liability) and 63 (Ox Activity Liability) contain similar provisions describing the liability of the sponsor of an activity using these animals and his responsibility to protect participants. Similarly, Chapter 64 (Agritourism Activity Liability) describes the liability of an agritourism professional when conducting agritourism activities. Chapter 65 (Comprehensive Animal Care) prescribes the standards of care that owners of domestic animals and operators of facilities must meet. This chapter also details the role and responsibilities of animal control officers in enforcing animal protection laws.

Repealed Chapters and Articles

During the revision process, the Code Commission became aware of a number of articles and chapters that are either unnecessary or obsolete, and have therefore been deleted. A chapter drafting note describes the reason for the repeal of each of the following chapters and articles:

Chapter 5.2, Rural Virginia Development Foundation (§ 3.1-27.37 et seq.)
Chapter 9, Article 1, Produce Market Authorities (§ 3.1-47 et seq.)
Chapter 9, Article 2, Produce Market Loan Fund (§ 3.1-65 et seq.)
Chapter 21, Article 6, Licensing Creameries, Plants and Stations (§ 3.1-563 et seq.)
Chapter 23.1, Nurseries, Nurserymen, Horticulture and Floriculture (§ 3.1-646.1 et seq.)
Chapter 27, Article 6, Certified Hatchery Products (§ 3.1-771 et seq.)
Chapter 27, Article 8.1, Promotion of Sale and Use of Poultry (§ 3.1-796.01 et seq.)
Chapter 27, Article 9, Quality Mark for Eggs (§ 3.1-796.1 et seq.)

Other Affected Titles

In addition of the transfer of existing Chapter 5 of Title 10.1 to proposed Title 3.2, one chapter and one article are transferred from existing Title 3.1 to other titles. Chapter 4.2 (§ 3.122.6 et seq.), Chippokes Plantation Farm Foundation, is moved to Title 10.1 because the Plantation is operated as a state park under the authority of the Department of Conservation and Recreation. Article 4 of Chapter 13 (§ 3.1-177 et seq.), Musk Thistle and Curled Thistle, has been moved to Title 15.2 since the law gives localities the authority to control the growth of these weeds. Consistent with Code Commission policy, the Southern Dairy Compact (existing Article 2.1 of Chapter 21) appears in its entirety in this report but will be transferred to Compacts Volume appearing as Chapter 33 of Title 3.2; an explanatory note will appear in its place directing the reader to the Compacts Volume.

An outline denoting the difference in the organization of Title 3.1 and Title 3.2 is included in the Appendix.

Changes Made Repeatedly Throughout Title 3.2

An explanation of the significant changes made in each chapter is provided in a note that precedes each chapter. Each section is followed by a drafting note describing any changes made in the section. If a section drafting note states "no change," the section contains no changes other than renumbering and updated cross-references. If a drafting note states "technical changes," the section contains changes to the text. These technical changes may range from the insertion of clarifying punctuation to a thorough modernization of archaic writing style. When sections contain structural or substantive changes, such as the deletion or addition of language, the drafting note describes the reason for the proposed change.

Many of the technical changes arose from the Code Commission's determination that terminology should be clear, consistent, and modern. Among these changes, the following list provides a representative sample of the most significant.

• Use of the term "adopt regulations" rather than "promulgate regulations." The term "adopt regulations" means the process by which regulations are put into effect and include the promulgation, revision or amendment, and formal acceptance of a regulation by an agency that has exercised its regulation-making authority in accordance with law. In its revision of Titles 2.1, 9, 63.1, and 37.1, the Code Commission adopted the use of this term instead of "promulgate" because it is more widely used.

• The term "rule" is deleted when used in conjunction with "regulation" since it has the same meaning and is therefore redundant.

• The terms "duly authorized agent" or "his designee" are deleted when referring to the Commissioner of Agriculture and Consumer Services' authority to delegate "tasks." Section 2.2-604 of the Code of Virginia gives the chief executive officer the authority to "...delegate or assign any officer or employee of his agency any tasks required to be performed by him or the agency... "

• The term "court of competent jurisdiction" has been changed to "appropriate court."

• References made to "county, city or town" have been changed to "locality."

• Throughout Title 3.1 special funds are mentioned into which various fees and charges are deposited. While these funds are given specific accounting codes by the Department, a number of these accounts are not statutorily authorized as special nonreverting funds. The Code Commission has statutorily established these funds using standardized language and identified how the moneys deposited in each fund may be expended.

• The sections "not set out" that appear only in the Acts of Assembly are viewed by the Code Commission as policy statements and therefore have been deleted.

• The terms "Act," "Law," and "Virginia" have been deleted when used as part of the title of a specific law such as the Virginia Pesticide Control Act, the Virginia Fertilizer Act, the Equine Activity Liability Act, the Virginia Commercial Feed Act, and the Virginia Cotton Board. There is one exception. The use of the term Virginia Quality Label remains since it is the name of a specific program that identifies specific products by placement of this term on the product label.

• References are made to the Department of Agriculture and Consumer Services' relationship with the U.S. Secretary of Agriculture in carrying out certain ministerial responsibilities, including entering cooperative state-federal agreements. The Code Commission believes, because these are typically undertaken at the agency level, it is appropriate to replace references to the U.S. Secretary of Agriculture with U.S. Department of Agriculture.

• Throughout this title reference is made to the United States Department of Agriculture. The term "United States" is being replaced by the abbreviation "U.S."