[Federal Register Volume 85, Number 191 (Thursday, October 1, 2020)]
[Rules and Regulations]
[Pages 61806-61809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21800]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 319

[Docket No. APHIS-2016-0065]
RIN 0579-AE41


Deregulation of Pine Shoot Beetle

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, without change, a proposal to 
amend our regulations to remove the domestic pine shoot beetle (PSB) 
quarantine and to eliminate the restrictions that apply to the 
importation of PSB host material from Canada. We have determined 
through analysis that the regulatory program is ineffective in slowing 
the spread of the pest and reducing damage, which has also been found 
to be minimal. This action will provide flexibility to the States as 
they manage PSB. It will also allow Federal resources spent on this 
program to be allocated elsewhere, and it will remove PSB-related 
interstate movement and importation restrictions on PSB-regulated 
articles.

DATES: Effective November 2, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Bill Wesela, National Policy 
Manager, PPQ, APHIS, 4700 River Road Unit 22, Riverdale, MD 20737-1236; 
(301) 851-2229; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Pine shoot beetle (PSB, Tomicus piniperda) is a pest of pines in 
Africa, Asia, and Europe. Biologically, this species of bark beetle is 
considered to be a secondary pest of pine and not able to successfully 
attack healthy trees. PSB colonizes fresh timber and dying pine trees 
in early spring. Larvae feed within the galleries under the bark and 
emerge as adults from shoots after a hard frost. They then move to the 
base of the tree to reproduce.
    PSB was first detected in the United States in a Christmas tree 
farm in Ohio in 1992. Based on an initial finding of potentially high 
economic losses in 1992, the Animal and Plant Health Inspection Service 
(APHIS) implemented a program to regulate at-risk pine commodities, 
including logs with bark, Christmas trees, and nursery stock in known 
infested areas.
    The regulations in ``Subpart G--Pine Shoot Beetle'' (7 CFR 301.50 
through 301.50-10, referred to below as the regulations) had restricted 
interstate movement of certain regulated articles (generally wood and 
wood products) from quarantined areas in order to prevent spread of PSB 
into non-infested areas of the United States.
    Since APHIS initiated the PSB program in 1992, PSB has advanced at 
a slow rate, and damage to native pines, plantations, and the nursery 
trade has been minimal. In 2015, APHIS met with the National Plant 
Board, which represents plant protection divisions of State departments 
of agriculture, to reassess the relevance and need for the PSB 
regulatory program. This was due to the slow advancement and minimal 
damage of PSB and the limited resources allotted to the PSB program.
    We prepared an analysis of regulatory options, ``Pine Shoot Beetle, 
Tomicus piniperda (Linnaeus): Analysis of Regulatory Options'' 
(February 2015), referred to below as the February 2015 analysis, to 
evaluate the PSB program in terms of its effectiveness and efficiency 
in slowing the spread and reducing losses. The analysis looked at 
timber losses and estimated compliance costs that Christmas tree 
growers incur in quarantined areas. Given the little PSB damage 
observed and the amount of resources allocated to manage the minimal 
risks associated with PSB, we determined it appropriate to deregulate 
PSB. While the possibility exists that PSB may spread at a faster rate 
and enter Southern States sooner in the absence of Federal regulations, 
we anticipated that PSB would be controlled within managed timber 
stands in the South.
    Accordingly, in a proposed rule \1\ published in the Federal 
Register on September 23, 2019 (84 FR 49680-49681, Docket No. APHIS-
2016-0065), we proposed to remove the domestic PSB quarantine and the 
restrictions that apply to importation of PSB host material from 
Canada. We solicited comments concerning our proposal for 60 days 
ending November 22, 2019.
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    \1\ To view the proposed rule, its supporting documents, and the 
comments that we received, go to https://www.regulations.gov/docket?D=APHIS-2016-0065.
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    We received 10 comments by the close of the comment period. They 
were from private citizens and one State forestry.
    Of the commenters, six opposed deregulation and the proposed rule. 
The remaining four commenters urged caution in deregulation, raising 
concerns similar to those opposed. One of these latter commenters 
recognized the positive economic impacts of deregulation on the 
industry, yet still pressed PSB concerns.
    Comments fell into seven distinct categories: Concern for natural 
forestland protection; support for the current regulations out of 
perception that they work; concern for the pine industry and economy; 
concerns for future impacts of PSB; concerns regarding reallocation of 
regulatory funding; requests for delay or phase-in of deregulation with 
monitoring and assessment before action; and requests that science 
direct regulation of PSB.
    We have characterized the comments received below according to 
these topics.
Natural Forestland Protection
    A majority of the 10 commenters wanted continued regulation to 
prevent PSB from inflicting pine tree losses on ``natural'' and wild 
forests, as well as private lands. Some addressed vulnerability of pine 
to PSB impact on tree trunks. Two commenters expressed concern over 
what they considered the growth-stunting potential of PSB in harming 
shoots of pine trees. The commenters stated that this is significant in 
that shoots are means of photosynthesis, energy conversion, and thus 
growth, which could impact yields and incomes.
    We acknowledge that PSB can inflict damage on pine trees and that 
it is a plant pest. Our February 2015 analysis did not state otherwise. 
The analysis also reviewed studies that showed adult PSB prefers to 
colonize freshly-cut stumps and slash. Nonetheless, the analysis 
concluded that pine-stand owners and the industry can and do

[[Page 61807]]

cover trees, remove downed trees, and treat pine for PSB in a manner 
that is more cost-effective than ongoing Federal regulation. As 
detailed in our February 2015 analysis, estimation and comparison of 
pine timber damage along the leading edge of PSB distribution, both 
with and without a ``slow-the-spread'' regulatory effort, indicates 
regulatory cost will exceed any avoided losses. Compliance costs 
projected long into the future outweigh any possible benefits to pine 
producers.
    There is also no evidence that in attacking the shoots of pine this 
beetle has broadly retarded maturity across pine timber stands and 
negatively impacted growth, vitality, and yields. While PSB does 
inflict damage on pine shoots, and especially on certain pine 
varieties, initial fears that the pest would devastate pine forests and 
their industry never came true.
Regulatory Efficacy
    Several commenters either presumed regulation is preventing spread 
within or from quarantined areas, or mistakenly believed PSB numbers 
are declining under regulation.
    We are making no changes in response to these comments. Our 
February 2015 analysis demonstrates that despite regulatory efforts 
that have spanned 28 years, PSB has spread from a single Christmas tree 
farm in one State (Ohio) in 1992 to 20 States. Fourteen States are 
presently under Federal quarantine in their entirety.
    While regulation did not keep PSB from spreading, we still find PSB 
damage to native pines and pine plantations, as well as costs to the 
nursery trade in this broad area, to be minimal. Our February 2015 
analysis for deregulation indicated the pest is now considered minor 
and readily within State and local ability to manage.
Pine Industry and Economy
    Four of the commenters expressed concern for the pine economy as a 
result of PSB deregulation. One commenter questioned especially the 
impact on the Christmas tree industry from possible increased cosmetic 
damage on certain species of pine.
    We find no evidence of such negative economic impacts to justify 
changing deregulation as proposed. Our February 2015 analysis 
demonstrated that despite PSB's spread, damage has been minor. 
Additionally, as experience now long indicates, pine producers can and 
do take steps to control the disease irrespective of Federal 
regulation. States may also impose and enforce their own quarantines in 
the absence of Federal regulation.
    Our analysis found nothing to suggest PSB is singularly 
destructive, nor did it find evidence of high level destructive or 
economic impact. So many more pests of far greater impact have prompted 
regulatory efforts since PSB's first detection 28 years ago.
Future PSB Impacts
    Half of the 10 commenters on PSB deregulation voiced concern for a 
range of possible negative future impacts. Two commenters suggested 
deregulation will result in high tree mortality in higher density 
forests (from higher stress on weakened, dying trees, even on healthy 
trees).
    One commenter addressed deregulatory impact on pine tree forests in 
the Southeastern States. The commenter feared PSB spread following 
deregulation will have a negative economic impact there, where the 
warmer climate will allow two incubation periods per year, instead of 
one; where storms are more frequent and violent, downing trees to 
create PSB brooding conditions; and where pine stands are large and 
dense.
    Two other commenters feared PSB spread to pinewood forests in the 
Western States. One acknowledged positive impacts on timber producers 
once they are freed from time-consuming, expensive regulatory 
compliance. However, the commenter feared possible negative impact on 
Western pine forests and urged ``Early Detection and Rapid Response'' 
funding.
    We understand these concerns, but we are making no changes to PSB 
deregulation. The commenters concerned about establishment in high 
density forests and Southeastern pine tree forests incorrectly assume 
the PSB damage has been minimal to date because PSB has become 
established in areas that are not densely populated with pine or are 
not otherwise conducive to PSB establishment. However, thus far, even 
in pine-dense regions where PSB has become endemic, PSB damage to 
native pines, plantations, and nursery trade has been minimal. 
Estimated compliance costs for Christmas tree growers have far 
outweighed timber losses. Moreover, Federal regulatory requirements for 
PSB have largely consisted of certification, inspection, and 
permitting. These activities control the artificial spread of PSB but 
are not aimed at controlling it within an affected region. It is the 
pine industry's own practices that control PSB within such an area. 
Pine producers apply cover spray on trees, destroy cell piles, remove 
stumps, and use trap logs to attract broods into piles that they then 
destroy.
    With regard to westward movement, the nation's Great Plains region 
(more than 1.12 million square miles of prairie, steppe and grasslands, 
with negligible quantities of pine), has provided and will continue to 
provide a natural barrier to PSB spread to the West. Western States are 
also free to fashion their own PSB regulation in the absence of Federal 
regulation and to promote the industry practices that pine producers 
already effectively employ in the Northeast and Central States.
Funding Concerns
    Four of 10 commenters either asked that regulatory funds be 
preserved to protect pine production and the natural environment from 
PSB's harm, or sought evidence that funding reallocation will be more 
beneficial. Commenters said regulation is worthwhile and should be 
prioritized. They stated costs to the public are worth controlling PSB 
populations.
    Our February 2015 analysis found that costs to producers in 
complying with quarantines, paperwork, and recordkeeping to manage 
agreements, data collection, and review for reporting all outweigh any 
benefits. Both assessments that we conducted call for new strategies, 
which the States and producers may undertake from the success of 
localized approaches.
    The pine industry is largely composed of small businesses and 
producers who can better safeguard pine resources, products, and their 
economy if they do not have to devote time and resources to meeting 
permit, certificate, and form compliance costs under quarantine. We 
have determined that removing the PSB quarantine will provide 
flexibility to the States as they and the pine community manage PSB in 
all regions.
    Funding used for PSB, which has become less and less significant 
even as the pest spread despite regulation, will be reallocated to 
address worsening Japanese beetle problems nationally. APHIS' Japanese 
beetle regulations control the movement of aircraft from regulated 
areas to southern and western areas where Japanese beetle is not 
located, but could become established, if introduced, and cause 
economic losses. However, increased package and product shipping across 
the United States has created another pathway for Japanese beetle 
movement into Southern and Western States. APHIS is working with a 
National Plant Board harmonization initiative to address this problem, 
and the reprogrammed funds will be used to help address this issue

[[Page 61808]]

by increasing inspection and treatment for Japanese beetle.
Delay or Phase-in of Deregulation
    Four of the comments counseled more cautious approaches to 
regulatory change and PSB control. Three sought delay or a phase-in of 
deregulation, with monitoring of impact on PSB losses and harm before 
entirely deregulating. One commenter suggested allocating funds for 
damage control at conclusion of a phase-out of regulations.
    While we recognize the value of cautionary approaches protective of 
natural resources, we find no basis to continue regulation. 
Deregulating PSB is based on 28 years of experience showing PSB 
regulation has not deterred spread of the pest. Yet neither widespread 
destruction nor significant economic loss resulted. Our February 2015 
analysis demonstrated that funding is being ineffectively used to deter 
PSB. Projected well into the future, the cost of regulation outweighs 
any avoided negative losses. It will cost producers more in compliance 
than they realize in any economic benefit. Prolonging this cost to 
largely small producers a few more years is neither justifiable, nor 
defensible. We must invite new strategies other than Federal 
regulation, recognizing local pine industry practices have been most 
effective at minimizing PSB damage. Moreover, continued regulation 
precludes our reprogramming the funds for PSB to Japanese beetle 
control, which, as discussed above, is needed to address an emerging 
pathway for the spread of Japanese beetle.
    We will however, continue to support the Nature Conservancy's 
``Don't Move Firewood'' campaign, which is credited with a broad 
education effort to enlist the public in curbing the spread of PSB and 
other pests of firewood. That effort will continue even after PSB 
deregulation. States are also free to attempt their own PSB regulation, 
and one State has already stated that it will. As the pine industry, 
processing, and trade have demonstrated where PSB spread across the 
Northern State regions, their treatments in the field and handling of 
harvested material, diminish PSB impact and loss. States and the 
industry need to help shift PSB strategies now away from national 
regulation as present funding addresses pressing Japanese beetle 
expansion.
Scientific Basis for Deregulation
    Two commenters asserted that official studies have not been 
conducted to justify deregulation. They said the public needs 
scientific studies conducted to determine current PSB populations and 
losses under regulation. They said careful analysis based on scientific 
findings could then form a basis for addressing permanent changes that 
will result from deregulation.
    We acknowledge need for more research to address many domestic 
pests. However, APHIS Plant Protection and Quarantine, Center for Plant 
Health Science and Technology (now named Science and Technology), and 
the Plant Epidemiology and Risk Laboratory did conduct the February 
2015 analysis of regulatory options for this deregulation. Our analysis 
drew on 46 citations to assess the physical and economic impact of PSB 
and to project possible impact of deregulation on other regions. We 
also consulted with the National Plant Board.
    Therefore, for the reasons given, we are adopting the proposed rule 
as a final rule, without change.
Executive Orders 12866 and 13771 and Regulatory Flexibility Act
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget. This rule is not an Executive 
Order 13771 regulatory action because this rule is not significant 
under Executive Order 12866.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
on the Regulations.gov website (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT or on the Regulations.gov website.
    APHIS is amending the pine shoot beetle (PSB) regulations to remove 
all Federal PSB quarantine areas and all Federal regulatory 
requirements related to the import and movement of PSB and associated 
host material. Although PSB is now found throughout the Northeast and 
North Central United States, damage to native pines and pine 
plantations and costs to the nursery trade have been minimal. It is now 
considered a minor pest that can be readily controlled locally.
    Establishments that may be affected are ones that grow, handle, or 
move regulated pine (Pinus spp.) products: bark products, Christmas 
trees, logs and firewood with bark attached, lumber with bark attached, 
nursery stock, raw pine materials for pine wreaths and garlands, and 
stumps. Potentially affected establishments include timber tract 
operations, forest product operations, logging companies, forest tree 
nurseries, and Christmas tree operations. The majority of these 
establishments are small entities.
    Regulated articles from PSB quarantined areas may be moved 
interstate if accompanied by a certificate or limited permit. Under the 
rule, affected establishments in the Federal PSB quarantine areas will 
no longer incur costs of complying with certification or permitting 
requirements. Businesses that operate under Federal PSB compliance 
agreements, of which there are about 100, are the establishments most 
likely to be shipping regulated articles interstate. With this rule, 
they will forgo the paperwork and recordkeeping costs of compliance. 
For affected entities that do not operate under compliance agreement, 
the costs of inspection are incurred by APHIS, unless they occur 
outside of normal working hours.
    We estimate that an establishment with an active PSB compliance 
agreement spends 4 to 8 hours annually collecting data and ensuring 
adherence to the agreement. Based on this estimate, total annual cost 
savings from PSB deregulation for establishments with active compliance 
agreements could be between $12,480 and $59,600. In accordance with 
guidance on complying with Executive Order 13771, the single primary 
estimate of the cost savings of this rule is about $36,000, the mid-
point estimate annualized in perpetuity using a 7 percent discount 
rate.
    Besides yielding cost savings for entities with compliance 
agreements, sales volumes for at least some businesses could increase 
if their sales are constrained because of the Federal quarantine. 
Restrictions ultimately borne will depend on whether States decide to 
enforce their own PSB quarantine programs.
    Internationally, the deregulation is unlikely to affect exports of 
pine products. In 2018, the United States exported about $240 million 
of pine logs and timber, of which $75 million were Christmas trees and 
other plants used for ornamental purposes. However, these exports are 
required to be treated otherwise for pine wood nematode under a systems 
approach and accompanied by a phytosanitary certificate as proof that 
the trees meet the importing countries' requirements, as documented in 
International Standards for Phytosanitary Measures No. 12.
    Longer term, any delay in PSB spread attributable to the quarantine

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regulations will end with promulgation of the rule. It is possible that 
without the PSB program, human-assisted dispersal of PSB would have 
occurred more rapidly and extended to areas that are not yet infested; 
the impact of the rule on pine populations in natural and urban 
environments within and outside currently quarantined areas--and on 
businesses that grow, use, or process pine products--is indeterminate. 
Still, PSB has caused negligible direct damage despite having spread 
widely, and compliance costs that will no longer be incurred under the 
rule are minimal.
    Based on this information, the APHIS Administrator has determined 
that this action will not have a significant economic impact on a 
substantial number of small entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 2 CFR chapter IV.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5U.S.C. 804(2).

Paperwork Reduction Act

    This final rule contains no reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we are amending 7 CFR parts 301 and 319 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.

    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).

Subpart G [Removed and Reserved]

0
2. Subpart G, consisting of Sec. Sec.  301.50 through 301.50-10, is 
removed and reserved.

PART 319--FOREIGN QUARANTINE NOTICES

0
3. The authority citation for part 319 continues to read as follows:

    Authority:  7 U.S.C. 1633, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  319.40-3  [Amended]

0
4. Section 319.40-3 is amended by:
0
a. In paragraph (a)(1)(i)(A), removing ``, and;'' and adding ``; and'' 
in its place;
0
b. Removing paragraph (a)(1)(i)(B); and
0
c. Redesignating paragraph (a)(1)(i)(C) as (a)(1)(i)(B).


Sec.  319.40-5  [Amended]

0
5. Section 319.40-5 is amended by removing and reserving paragraph (m).

    Done in Washington, DC, this 24th day of September 2020.
Michael Watson,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2020-21800 Filed 9-30-20; 8:45 am]
BILLING CODE 3410-34-P