TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Fast-Track Regulation

Title of Regulation: 2VAC5-318. Rules and Regulations for Enforcement of the Virginia Pest Law - Thousand Cankers Disease (repealing 2VAC5-318-10 through 2VAC5-318-140).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 31, 2024.

Effective Date: August 15, 2024.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, TDD (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the board as a policy board and authorizes the board to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Pursuant to § 3.2-703 of the Code of Virginia, 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.

Purpose: In 2021, the United States Department of Agriculture Export Specialists met with state departments of agriculture to reassess the damages caused by Thousand Cankers Disease (TCD), the rate of spread of the walnut twig beetle (WTB), and the need for state-level quarantines for export purposes. Export specialists solicited information from importing countries regarding their import requirements and whether a quarantine was necessary for trade purposes. It was determined that pest-free status, determined by approved trapping and survey protocols, would be sufficient to allow products to be exported from Virginia or other states to other countries. State departments of agriculture also had internal discussions regarding the need for continued regulation of TCD, as it was consistently observed through surveys that the disease complex did not have the impact on walnut trees that was originally predicted. The Virginia Department of Agriculture and Consumer Services (VDACS) will continue surveying for TCD and WTB for accurate reporting of pest status in Virginia.

Since the establishment of the quarantine, there have not been any other significant finds throughout the Commonwealth, and the areas under quarantine are urban sites where trees become stressed more easily. Trees under physiological stress are more susceptible to pests and pathogens and are more attractive to wood-boring beetles, such as the walnut twig beetle. Research has shown that TCD is less impactful to tree health when the trees are not experiencing environmental stresses such as drought or unusually high temperatures for several years. Virginia has locations that were positive for TCD but have since recovered from the disease and infections are no longer present.

Based on survey data, import requirements, and recent research, VDACS believes that the quarantine is no longer necessary to slow the spread of the disease. Repeal of this quarantine, which includes restrictions on the movement of articles capable of spreading TCD, will support the economic welfare of industries transporting such articles from or through a currently quarantined area.

Rationale for Using Fast-Track Rulemaking Process: The repeal of this regulation is not the result of a directive from the General Assembly, the federal government, or a court. Since 2012, there have been no significant TCD detections in the Commonwealth. Over the past four years, more than 220 sites have been surveyed, with traps placed near at-risk sites, such as public parks, rest areas, and nurseries. Since 2018, only one WTB has been detected and only 11 of the 220 sites had trees infested with TCD, and these were sites where TCD had been confirmed in previous years. The positive WTB detection was found in urban settings, not in a forested setting or at a high-risk pathway. No additional areas of spread of the WTB or TCD were observed during this timeframe.

The repeal of this regulation is expected to be noncontroversial because VDACS has been surveying for TCD and WTB since the regulation was established and trapping data indicates that there are limited populations of the insect, minimal levels of the pathogen, and the impact that the disease has on trees is primarily dependent on drought or other environmental stressors. Repealing the quarantine will allow industry to move with no restrictions walnut logs, trees, and other products out of those counties currently under quarantine. Repealing the quarantine is not expected to result in the spread of TCD in Virginia.

Substance: This regulatory action will repeal the regulation, which will allow for the unrestricted movement of walnut logs, trees, and other products out of the counties currently under quarantine.

Issues: The primary advantage of this regulatory change is the elimination of regulatory requirements placed on those businesses that must currently comply with the regulation. Businesses required to comply with the regulation include those that move walnut trees and logs and other regulated articles out of the quarantined areas. The primary advantage to the Commonwealth is removal of administrative processes related to ensuring compliance with the regulation. There are no known disadvantages to this regulatory change for businesses, citizens, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. As a result of a 2022 periodic review,² the Board of Agricultural and Consumer Services (board) proposes to repeal this regulation pertaining to the quarantine related to Thousand Cankers Disease (TCD) because such requirements are no longer necessary to slow the spread of the disease.

Background. As explained in the agency background document (ABD), TCD is native to the western United States and primarily affects black walnut trees.³ The Virginia Department of Agriculture and Consumer Services (VDACS) first received reports of black walnut trees exhibiting symptoms of TCD in Chesterfield County in 2011; additional VDACS surveys revealed that TCD was also present in Henrico County and the City of Richmond. Accordingly, this regulation was originally promulgated in 2011 to establish quarantine requirements to restrict the spread of TCD; additional localities were added to the quarantine in 2012.⁴

The regulation specifies the list of regulated articles, the localities covered by the quarantine requirements, the conditions governing the intrastate movement of regulated articles, the issuance of certifications and permits for the movement of regulated articles, compliance agreements, the prohibition on entry of regulated articles into Virginia from certain other states. The regulation (2VAC5-318-140) also specifies that this regulation may be revoked by the board when the Board is satisfied that the need for this quarantine no longer exists.

VDACS reports that since 2012, there have been no significant TCD detections in the Commonwealth, and that several trees that were positive for TCD have since recovered from the disease.⁵ VDACS surveys for TCD indicate that there are limited populations of the insect that spreads TCD, minimal levels of the pathogen, and the impact that the disease has on trees is primarily dependent on drought or other environmental stressors. Thus, the board proposes to repeal this regulation.

Estimated Benefits and Costs. Repealing this regulation would primarily benefit businesses that move walnut logs, trees, and other products from or through localities currently under quarantine. These businesses currently have to obtain a certificate or limited permit from a VDACS inspector, as required by 2VAC5-318-70; once the regulation is repealed, such inspection would no longer be required. As there is no cost to the business for VDACS to conduct an inspection and issue a limited permit, or to enter into a compliance agreement, there would be no cost savings from the elimination of any permit fees. However, regulants would save time from not having to wait for an inspection or to receive a permit.

VDACS has also entered into compliance agreements with two entities (a landscaping supply business and a local government) to regulate the movement of walnut bark and hardwood mulch from an infested area to a non-infested area. The compliance agreements require that commercial shipments of walnut plants and plant parts be chipped and composted using a specific process, within the quarantined area, before the mulch could be shipped within the state. This process entails heating and composting over at least eight days and requires heavy equipment to move and turn the compost piles to ensure proper aeration and that a temperature of 140-degrees Fahrenheit is reached and maintained. If a business had the required equipment and the necessary space, VDACS estimates that it could cost $30 to $600 for the labor and gas required to process a minimum compost pile of 200 cubic yards, which translates to $4.48 to $8.96 per three-cubic-yard shipment of mulch. These costs would be eliminated by the repeal of this regulation. The compliance agreement also requires these entities to issue a certificate for each shipment, which states that the shipment meets the requirements of this regulation, and to maintain a record of all intrastate shipments for two years. These requirements would all be removed once the regulation is repealed.

Lastly, although shipments would no longer be inspected, VDACS reports that they will continue surveying for TCD even after the regulation is repealed. This would limit any future costs that may arise from a possible resurgence of TCD.

Businesses and Other Entities Affected. As mentioned previously, repealing this regulation would primarily benefit businesses that transport black walnut trees, including parts and products, out of or through quarantined localities; VDACS does not have data on the number of such businesses. Repealing this regulation would also benefit Yard Works LLC (Moseley, VA) and Hanover County, the two entities currently under a compliance agreement with VDACS, which carries specific requirements for the treatment of mulch before it can be transported outside the county. An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ Repealing this regulation would not generate any increase in net cost or reduction in net benefit. Thus, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments would not adversely affect small businesses.

Localities⁹ Affected.¹⁰ Hanover County, which has a compliance agreement with VDACS for the transportation of walnut bark and mulch, would benefit from not having to treat the mulch or inspect and certify shipments. Other localities that were included in the quarantine may benefit indirectly to the extent that repealing the regulation reduces costs to local businesses that transport black walnut trees, including parts or products. This includes the entire counties of Chesterfield, Fairfax, Goochland, Hanover, Henrico, King and Queen, King William, New Kent, Powhatan, and Prince William, and the entire cities of Colonial Heights, Fairfax, Falls Church, Manassas, Manassas Park, and Richmond.

Projected Impact on Employment. The repeal of this regulation does not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not appear to affect the value of private property. Real estate development costs would not be affected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=2177.

³ See ABD, page 1: https://townhall.virginia.gov/l/GetFile.cfm?File=48\6242\10006\ AgencyStatement_VDACS_10006_v1.pdf.

⁴ See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=6080, which created the regulation, and https://townhall.virginia.gov/l/ViewAction.cfm?actionid=3759 and https://townhall.virginia.gov/l/ViewAction.cfm?actionid=3839, which expanded the quarantine. .

⁵ ABD, page 3.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Agriculture and Consumer Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Background: Thousand Cankers Disease (TCD) is a disease complex native to the western United States and primarily affects black walnut Juglans nigra. This disease is the result of the combined activity of a fungus (Geosmithia morbida) and the walnut twig beetle (Pityophthorus juglandis). The walnut twig beetle is a known vector of the fungus that causes the damaging cankers inside the walnut trees. The cankers impact the vascular tissue of trees, causing leaf defoliation and overall canopy decline, which can lead to branch dieback and tree mortality. The first occurrence of TCD in the eastern U.S. was in Tennessee in August 2010. In spring of 2011, the Virginia Department of Agriculture and Consumer Services (VDACS) received reports of black walnuts exhibiting symptoms of TCD in Chesterfield County. Surveys conducted by VDACS confirmed the presence of TCD at this site. Additional delimiting surveys by VDACS revealed that TCD was also present in Henrico County and the City of Richmond.

In July 2011, pursuant to § 3.2-703 of the Code of Virginia, the Commissioner of Agriculture and Consumer Services established Rules and Regulations for Enforcement of the Virginia Pest Law - Thousand Cankers Disease (2VAC5-318) due to the presence of TCD. The quarantine included the Counties of Chesterfield, Goochland, Hanover, Henrico, and Powhatan and the Cities of Colonial Heights and Richmond. After additional populations were found in Northern Virginia, the quarantine was expanded in June 2012 to include the Counties of Fairfax and Prince William and the Cities of Fairfax, Falls Church, Manassas, and Manassas Park. The final expansion of the quarantined area occurred in November 2012, to include the Counties of King and Queen, King William, and New Kent. There is no federal quarantine for Thousand Cankers Disease.

Summary:

As result of a periodic review of the regulation, the amendments repeal the Rules and Regulations for Enforcement of the Virginia Pest Law - Thousand Cankers Disease (2VAC5-318).