Title of Regulation: 2VAC5-325. Regulations Governing Pine Shoot Beetle (repealing 2VAC5-325-10 through 2VAC5-325-120).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 18, 2021.

Effective Date: September 2, 2021.

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 (800) 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 of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provision of Title 3.2 of the Code of Virginia. Section 3.2-703 of the Code of Virginia provides the legal basis for the promulgation and repeal of the regulation.

Purpose: In 1992, the U.S. Department of Agriculture (USDA) established federal regulations for the pine shoot beetle (Tomicus piniperda), following the initial detection of the beetle in Ohio. The initiation of this regulation at the federal level was in response to the potential for high economic losses caused by the pine shoot beetle in various species of pine trees.

In 2003, under authority granted by § 3.2-703 of the Tree and Crop Pests Law (§ 3.2-700 et seq. of the Code of Virginia), the Board of Agriculture and Consumer Services established Regulations Governing Pine Shoot Beetle (2VAC5-325) after the pine shoot beetle was found in a Christmas tree planting in Clarke County. The regulation established a quarantine, which was subsequently expanded to Loudoun County in 2010 after the pine shoot beetle was detected in that county. USDA also expanded the federal pine shoot beetle regulation to include Loudoun County at the same time, thereby ensuring that the federal and state pine shoot beetle regulations were aligned. To reduce the spread of pine shoot beetle, the regulation restricts the movement from regulated localities of those articles that are at risk for moving the pine shoot beetle.

In 2015, the USDA met with state departments of agriculture to reassess damages caused by the pine shoot beetle, the rate of spread of this insect, and the impact that the pine shoot beetle had on timber and Christmas tree production. An analysis was conducted, and it was determined that the pine shoot beetle had not spread throughout the country and the damages from this insect pest did not significantly impact the pine, timber, or Christmas tree industries. In 2019, USDA proposed to deregulate the pine shoot beetle, and the federal regulation was repealed effective November 2, 2020. The repeal of the regulations will align Virginia's response to the pine shoot beetle with the federal response to this pest and will support the economic welfare of Christmas tree and pine tree growers operating in the currently regulated localities.

Rationale for Using Fast-Track Rulemaking Process: The repeal of this regulation is anticipated to be noncontroversial because the pine shoot beetle has not caused significant damage to pine trees in Virginia, surveys indicate that the pine shoot beetle is no longer present in Virginia, and, as a result, there is no risk of spread to uninfested areas. In addition, there will be no restrictions on the movement of pine trees, pine logs, and other regulated articles, thereby benefiting the pine tree growers in regulated localities, which must currently comply with requirements of the regulation.

Substance: This regulatory action will repeal the Regulations Governing the Pine Shoot Beetle. Repealing the regulation will remove the restrictions on Christmas tree and pine tree growers, thereby allowing the unrestricted movement of pine logs, Christmas trees, and other regulated articles out of those counties currently under quarantine.

Issues: The primary advantage of this regulatory change is elimination of regulatory requirements placed on those businesses that must currently comply with the regulation, including those that move pine 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:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes to repeal regulations that restrict the movement of materials that host the pine shoot beetle.

Background. This action follows the repeal of similar federal regulations pertaining to the pine shoot beetle,¹ and the Board's findings that the pine shoot beetle has not caused significant economic impact to affected industries, that the pest has not spread throughout the Commonwealth, and that it can be successfully managed through the implementation of best management practices.

The pine shoot beetle (Tomicus piniperda) is a pest that affects pines in Africa, Asia, and Europe by colonizing fresh timber and dying pine trees in early spring. Larvae feed within the galleries under the bark and emerge as adults from the shoots. They then move to the base of the tree to reproduce. This species of bark beetle is not considered fatal for the tree, but it damages the growth form, reducing the economic value of the timber by reducing growth rates and stem straightness.

The first known occurrence of the pine shoot beetle in North America was in 1992 at a Christmas tree farm in Ohio, from where it has spread to 11 states in the United States and to Ontario and Quebec in Canada. Based on an initial finding of potentially high economic losses, the United States Department of Agriculture (USDA) implemented in 1992 a program regulating the movement of pine logs and bark, nursery stock, and Christmas trees from infested to uninfested areas.

In 2003, the Board promulgated Regulations Governing Pine Shoot Beetle after the pine shoot beetle was found in a Christmas tree planting in Clarke County. The regulation established a quarantine, which was subsequently expanded to Loudoun County in 2010 after the pine shoot beetle was detected in that county as well. USDA also expanded the federal pine shoot beetle regulation to include Loudoun County at the same time, thereby ensuring that the federal and state pine shoot beetle regulations were aligned.

Consistent with the federal regulation's focus on prevention of spread, containment of infestation, treatment, and eradication, Virginia's regulation primarily restricts the movement of articles that are at risk for transporting the pine shoot beetle out of regulated localities. The federal regulations have been repealed effective November 2, 2020, primarily due to the finding that the beetle has not caused significant economic damage as originally anticipated.

Similarly, the Board has determined that pine shoot beetle has not caused significant economic impact to affected industries, that the pest has not spread throughout the Commonwealth, and that the pine shoot beetle can be successfully managed without limiting the movement of goods. As a result, the Board proposes to repeal this regulation.

Estimated Benefits and Costs. Currently, two Christmas tree growers (one in Loudoun County and one in Clarke County) are subject to this regulation, although as many as six businesses have been regulated at one time since 2003. The regulation is enforced by requiring the businesses that are at risk of pine shoot beetle presence and spread to enter into a compliance agreement with the Virginia Department of Agriculture and Consumer Services (VDACS). Through the compliance agreement, the regulants are required to limit shipment of regulated articles out of the regulated area unless all applicable components of the compliance management program are met.

Those requirements include 1) sanitation (removal and destruction of brood material such as dead and dying pine trees, recently cut or killed trees, tree tops, branches and other pine slash, and stump), 2) visual monitoring (random scouting of infested shoots and tips), 3) deployment of trap and sentinel logs by January and then destruction of logs in April (to trap and eradicate adult beetles searching for suitable brood material), 4) chemical control (application of pesticides), 5) record keeping (pertinent records include the number of trees scouted, scouting dates, sanitation treatments conducted, trap log activities and insecticide usage).

According to VDACS, the requirements in the compliance agreements are no more than best management practices (to control the movement of the beetle, to detect and eradicate the beetle from their stocks) and do not impose significant costs on regulants. There are no regulatory fees for compliance agreements, permits or certificates, or surveys that VDACS conducts.

In summary, the compliance costs implicated by the regulation include travel or postage costs, time, and effort to sign a compliance agreement with VDACS, inspection of shipments bound for transport out of the locality, visual inspection of fields where the trees are grown, application of pesticides to treat infestations when discovered, and recordkeeping expenses. Similarly, the agency costs are comprised of staff time to draft and enter into compliance agreements and a small fraction of two pest inspectors' time and travel devoted to survey the beetle presence under this regulation.

According to VDACS, the regulants would likely continue their best management practices for the beetle even if they may no longer be required to do so under this regulation. Such behavior would be rational if regulants are interested in minimizing the risk of economic losses that may stem from the pine shoot beetle. Thus, while the repeal of this regulation is expected to eliminate administrative costs associated with signing the agreement with VDACS and the record keeping expenses, it is not expected to create any other significant economic impact on entities that are regulated.

Although without the regulation there would be no barrier to prevent the exportation of infested host materials out of the locality, VDACS reports that last time the beetle was found in Virginia was in 2010; according to the agency, this indicates that the beetle is no longer present in the Commonwealth.

Businesses and Other Entities Affected. The repeal of this regulation would primarily affect businesses that move pine trees, pine logs, and other regulated articles out of the quarantined area. Currently, two Christmas tree growers (one each, in Loudoun and Clarke Counties) would be affected. The repeal of this regulation is not anticipated to have an adverse impact² on affected entities.

Small Businesses³ Affected. The two entities regulated under this regulation are believed to be small businesses, but the proposed repeal of this regulation is not expected to adversely or significantly affect them.

Localities⁴ Affected.⁵ This regulation specifically applies to Loudoun and Clarke Counties, the localities where the pine shoot beetle is present. However, the proposed action does not introduce costs for the two localities.

Projected Impact on Employment. The proposed action does not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed action would remove restrictions on the movement of materials that host the pine shoot beetle. However, the repeal of such restrictions is not anticipated to have a significant impact on the use and value of private property or on real estate development costs.

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¹ https://www.federalregister.gov/documents/2020/10/01/2020-21800/deregulation-of-pine-shoot-beetle

² Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

³ Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

⁴ "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.

⁵ § 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to the Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The amendments repeal Virginia's Regulations Governing Pine Shoot Beetle (2VAC5-325) as the regulation is no longer needed because the pine shoot beetle is not a threat in Virginia.

Chapter 325

Regulations Governing Pine Shoot Beetle

2VAC5-325-10. Definitions. (Repealed.)

The following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Certificate" means a document in which an inspector affirms that a specified regulated article is free of pine shoot beetle and may be moved to any destination outside the area under quarantine.

"Compliance agreement" means a written agreement between a person engaged in growing, handling, receiving or moving regulated articles and the Virginia Department of Agriculture and Consumer Services, the U.S. Department of Agriculture, or both, wherein the former agrees to comply with the requirements of the compliance agreement.

"Infestation" means the presence of the pine shoot beetle or the existence of circumstances that make it reasonable to believe that the pine shoot beetle is present.

"Inspector" means any employee of the Virginia Department of Agriculture and Consumer Services, or other person authorized by the commissioner to enforce the provisions of the quarantine or regulation.

"Limited permit" or "permit" means a document in which an inspector affirms that the regulated article identified on the document is eligible for movement in accordance with this regulation only to a specified destination and only in accordance with specified conditions.

"Moved," "move," or "movement" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.

"Person" means any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity.

"Pine nursery stock" means all Pinus spp. woody plants, shrubs, and rooted trees, including dug (balled and burlaped) Christmas trees, and ornamental pine, such as bonsai.

"Pine shoot beetle" means the insect known as pine shoot beetle, Tomicus piniperda (Linnaeus), in any stage of development.

"Virginia Pest Law" means the statute set forth in Article 1 (§ 3.2-700 et seq.) of Chapter 7 of Title 3.2 of the Code of Virginia.

2VAC5-325-20. Regulated articles. (Repealed.)

The following articles are regulated under the provisions of this quarantine, and shall not be moved out of any regulated area within Virginia, except in compliance with the conditions prescribed in this quarantine:

1. Pine products (Pinus spp.), as follows: bark nuggets (including bark chips); Christmas trees; logs with bark attached; lumber with bark attached; nursery stock; raw pine materials for wreaths and garlands; and stumps.

2. Any article, product, or means of conveyance which, in the determination of the Commissioner of the Department of Agriculture and Consumer Services (commissioner), presents the risk of spread of the pine shoot beetle.

2VAC5-325-30. Regulated areas. (Repealed.)

The following areas in Virginia:

The entire counties of:

Clarke

Loudoun

2VAC5-325-40. Conditions governing the intrastate movement of regulated articles. (Repealed.)

A. Movement within regulated areas. Movement of a regulated article solely within the regulated area is allowed without restriction.

B. Any regulated article may be moved intrastate from a regulated area only if moved under the following conditions:

1. With a certificate or limited permit issued and attached in accordance with 2VAC5-325-50 and 2VAC5-325-80 of this quarantine.

2. Without a certificate or limited permit, if:

a. (1) The regulated article originates outside any regulated area and is moved through the regulated area without stopping (except for drop-off loads, refueling, or traffic conditions, such as traffic lights or stop signs) during October, November, or December, or when ambient air temperature is below 10 degrees Celsius (50 degrees Fahrenheit); or

(2) The regulated article originates outside any regulated area and, during the period of January through September, is moved through the regulated area at a temperature higher than 10 degrees Celsius (50 degrees Fahrenheit), if the article is shipped in an enclosed vehicle or completely covered (such as with plastic, canvas, or other closely woven cloth) so as to prevent access by the pine shoot beetle; and

b. The point of origin of the regulated article is indicated on the waybill.

3. With a limited permit issued by the Commonwealth if the regulated article is moved:

a. By a state or federal agency for experimental or scientific purposes;

b. Under conditions, specified on the permit, which the commissioner has found to be adequate to prevent the spread of the pine shoot beetle; and

c. With a tag or label, bearing the number of the permit issued for the regulated article, attached to the outside of the container of the regulated article or attached to the regulated article itself, if the regulated article is not in a container.

2VAC5-325-50. Issuance and cancellation of certificates and limited permits. (Repealed.)

A. An inspector may issue a certificate for the intrastate movement of a regulated article if the inspector determines that:

1. a. The regulated article has been treated under the direction of an inspector in accordance with 2VAC5-325-100 of this quarantine;

b. Based on inspection of the premises of origin, if the regulated article is a greenhouse-grown pine (such as bonsai), that the greenhouse is free from the pine shoot beetle and is screened to prevent entry of the pine shoot beetle;

c. Based on inspection of the regulated article, if the regulated article is a pine seedling or a pine transplant and is no greater than 36 inches high with a bole diameter at soil level of 1 inch or less, that it is free from the pine shoot beetle;

d. Based on inspection by an inspector (branch tip-by-branch tip) of pine nursery stock, that it is free from the pine shoot beetle; or

e. If the regulated article is a pine log with bark attached or pine lumber with bark attached or a pine stump, that its source tree has been felled during the period of July through October; and

2. a. The regulated article will be moved through the regulated area during October, November, or December, or when the ambient air temperature is below 10° Celsius (50° Fahrenheit);

b. The regulated article will be moved through the regulated area during the period of January through September, if the ambient air temperature is 10° Celsius (50° Fahrenheit) or higher, in an enclosed vehicle or completely enclosed by a covering adequate to prevent access by the pine shoot beetle; or

c. The pine log with bark attached, pine lumber with bark attached, or pine stump, from a tree felled during the period of July through October, will be shipped intrastate from the regulated area during the period of July through October; and

3. The regulated article is to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of the pine shoot beetle; and

4. The regulated article is eligible for unrestricted movement under all other state or federal domestic plant quarantines and regulations applicable to the regulated articles.

B. An inspector may issue a limited permit for the intrastate movement of a regulated article if the inspector determines that:

1. a. The regulated article is to be moved intrastate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this intrastate movement will not result in the spread of the pine shoot beetle. If the regulated article is part of a shipment of pine Christmas trees, the inspector will make a pest-risk determination on the basis of an inspection conducted in accordance with 2VAC5-325-50 C of this quarantine; or

b. The regulated article is to be moved intrastate from a regulated area to a regulated area and will transit any nonregulated area in an enclosed vehicle or completely enclosed by a covering adequate to prevent access by the pine shoot beetle; and

2. The regulated article is to be moved in compliance with any additional conditions deemed necessary under the Virginia Pest Law to prevent the spread of the pine shoot beetle; and

3. The regulated article is eligible for interstate movement under all other state or federal domestic plant quarantines and regulations applicable to the regulated article.

C. The number of pine Christmas trees randomly selected for inspection is determined by the size and type of shipment, in accordance with the following tables. If a shipment mixes painted and natural trees, the inspection procedure for painted trees will apply. If a pine shoot beetle is detected in any one of the trees being sampled, the entire shipment must be rejected. If no pine shoot beetle is detected in any of the trees sampled, the shipment will be allowed to move with a limited permit. The limited permit must state, "All trees that remain unsold as of December 25 must be destroyed by burning or chipping, or must be fumigated, prior to January 1."

Table 1. -- Painted (Color-Enhanced) Pine Christmas Trees
No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample
1-72	All	301-400	111	701-800	120	2,001-3,000	127
73-100	73	401-500	115	801-900	121	3,001-5,000	128
101-200	96	501-600	117	901-1,000	122	5,001-10,000	129
201-300	106	601-700	119	1,001-2,000	126	10,001 or more	130

Table 2.-- Natural (Unpainted) Pine Christmas Trees
No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample	No. of trees in shipment	No. of trees to sample
1-57	All	201-300	75	501-600	80	1,001-3,000	84
58-100	58	301-400	77	601-700	81	3,001-10,000	85
101-200	69	401-500	79	701-1,000	82	10,000 or more	86

D. Certificates and limited permits for use for intrastate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the intrastate movement of a regulated article if an inspector has determined that the regulated article is otherwise eligible for a certificate in accordance with subsection A of this section. A person operating under a compliance agreement may issue a limited permit for intrastate movement of a regulated article when an inspector has determined that the regulated article is eligible for a limited permit in accordance with subsection B of this section.

E. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector orally or in writing if he determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing as promptly as circumstances allow.

2VAC5-325-60. Compliance agreements and cancellation. (Repealed.)

A. Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person understands this quarantine. The agreement shall stipulate that safeguards will be maintained against the establishment and spread of infestation, and will comply with the conditions governing the maintenance of identity, handling, and subsequent movement of such articles, and the cleaning and treatment of means of conveyance and containers.

B. Any compliance agreement may be canceled orally or in writing by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with this quarantine. If the cancellation is oral, the cancellation and the reasons for the cancellation shall be confirmed in writing as promptly as circumstances allow.

2VAC5-325-70. Assembly and inspection of regulated articles. (Repealed.)

A. Any person (other than a person authorized to issue certificates or limited permits under 2VAC5-325-50 D), who desires to move a regulated article intrastate accompanied by a certificate or limited permit shall apply for inspection as far in advance as possible.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and comply with this quarantine. The regulated article shall be safeguarded from infestation.

2VAC5-325-80. Attachment and disposition of certificates and limited permits. (Repealed.)

A. A certificate or limited permit required for the intrastate movement of a regulated article must be attached, at all times during the intrastate movement, to the outside of the container containing the regulated article, or to the regulated article itself, if not in a container. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article.

2VAC5-325-90. Inspection and disposal of regulated articles and pests. (Repealed.)

Any properly identified inspector is authorized to stop and inspect, and to seize, destroy, or otherwise dispose of, or require disposal of regulated articles and pine shoot beetles as provided in the Virginia Pest Law under which this quarantine is issued.

2VAC5-325-100. Treatments. (Repealed.)

A. Fumigation is authorized for use on pine logs with bark attached, pine lumber with bark attached, pine bark nuggets (including bark chips), and pine stumps, as follows: logs, lumber, and stumps may be treated with methyl bromide at normal atmospheric pressure with 48 g/m³ (3 lb/1000 ft³) for 16 hours at 21° Celsius (70° Fahrenheit) or above, or 80 g/m³ (5 lb/1000 ft³) for 16 hours at 4.5° through 20.5° Celsius (40° through 69° Fahrenheit).

B. Cold treatment is authorized for cut pine Christmas trees, pine nursery stock, and raw pine materials for pine wreaths and garlands as follows: The regulated articles must be loaded into a refrigeration unit and held at -20.6° Celsius (-5° Fahrenheit) for one hour; the period before the refrigeration unit reaches the specified temperature is not part of the treatment period.

C. Any one of these fumigation treatments is authorized for use on cut pine Christmas trees and raw pine materials for pine wreaths and garlands. Cut pine Christmas trees and raw pine materials for pine wreaths and garlands may be treated with methyl bromide at normal atmospheric pressure as follows:

Temperature	Dosage: lbs/1000 ft3	Exposure: hours	Concentration readings: ounces per 1000 ft3
			2.0 hrs.	3.0 hrs.	3.5 hrs.	4.0 hrs.
40-49°F	4.0	4.0	57	--	--	48
50-59°F	4.0	3.5	57	--	48	--
50-59°F	3.5	4.0	50	--	--	42
60°F +	4.0	3.0	57	48	--	--
60°F +	3.0	4.0	43	--	--	36

2VAC5-325-110. Nonliability of the department. (Repealed.)

The Virginia Department of Agriculture and Consumer Services shall not be liable for:

1. Any costs incident to inspections required under the provisions of the quarantine and regulations, other than for the services of the inspector.

2. Damage to cut pine Christmas trees due to possible phytotoxic effects of authorized treatments. Trees should be cut at least 14 days before treatment to reduce the possibility of phytotoxic effects.

2VAC5-325-120. Revocation of this regulation. (Repealed.)

This regulation may be revoked by either the Commissioner of the Department of Agriculture and Consumer Services or the Board of Agriculture and Consumer Services when such party is satisfied that the need for the regulation no longer exists. No revocation may take effect unless notice of the revocation is filed with the Registrar of Regulations. Once the notice has been filed, the effective date of the revocation shall be the filing date (unless the notice specifies an effective date that is later than the filing date, in which case that later date shall be the effective date).