Removal of Emerald Ash Borer Domestic Quarantine Regulations
| Published date | 15 December 2020 |
| Citation | 85 FR 81085 |
| Record Number | 2020-26734 |
| Section | Rules and Regulations |
| Court | Animal And Plant Health Inspection Service |
Federal Register, Volume 85 Issue 241 (Tuesday, December 15, 2020)
[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Rules and Regulations]
[Pages 81085-81095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26734]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 /
Rules and Regulations
[[Page 81085]]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. APHIS-2017-0056]
RIN 0579-AE42
Removal of Emerald Ash Borer Domestic Quarantine Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are removing the domestic quarantine regulations for the
plant pest emerald ash borer. This action will discontinue the domestic
regulatory component of the emerald ash borer program as a means to
more effectively direct available resources toward management and
containment of the pest. Funding previously allocated to the
implementation and enforcement of these domestic quarantine regulations
will instead be directed to nonregulatory options to mitigate and
control the pest.
DATES: Effective January 14, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Herbert Bolton, National Policy
Manager, PPQ, APHIS, 4700 River Road, Unit 26, Riverdale, MD 20737-
1231; (301) 851-3594; [email protected].
SUPPLEMENTARY INFORMATION:
Background
Emerald ash borer (EAB, Agrilus planipennis) is a destructive wood-
boring pest of ash (Fraxinus spp.) native to China and other areas of
East Asia. First discovered in the United States in southeast Michigan
in 2002, EAB is well-suited for climatic conditions in the continental
United States and is able to attack and kill healthy trees in both
natural and urban environments. As a result, EAB infestations have been
detected in 35 States and the District of Columbia, with additional
infestations that have not yet been detected likely.\1\ The Animal and
Plant Health Inspection Service (APHIS), through notice and comment
rulemaking, instituted a domestic quarantine program for EAB that has
been in place since 2003 (see 68 FR 59082-59091, Docket No. 02-125-1).
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\1\ The list of quarantined areas is available at https://www.aphis.usda.gov/plant_health/plant_pest_info/emerald_ash_b/downloads/eab-areas-quarantined.pdf.
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The regulations in ``Subpart J--Emerald Ash Borer'' (7 CFR 301.53-1
through 301.53-9, referred to below as the regulations) list
quarantined areas that contain or are suspected to contain EAB. The
regulations also identify, among other things, regulated articles and
the conditions governing the interstate movement of such regulated
articles from quarantined areas in order to prevent the spread of EAB
more broadly within the United States.
Since the implementation of the domestic quarantine program,
several factors had adversely affected its overall effectiveness in
managing the spread of EAB. First, during the Midwestern housing boom
that began in the 1990s, ash trees often were planted in new housing
developments because of their hardiness and general resistance to
drought conditions. Developers frequently sourced these trees from
nurseries that were later determined to be heavily infested with EAB
and that were subsequently put under quarantine.\2\ It was several
years after the issuance of domestic quarantine regulations before a
revised survey apparatus, using a lure-based trap, was developed in
2007. This revised survey apparatus identified many long-standing
infestations of EAB in residential areas, leading to a substantial
increase in the number of counties under quarantine.\3\
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\2\ That Michigan nurseries shipped infested nursery stock prior
to development of the EAB regulations, see Haack, R.A. et al.
Emerald Ash Borer Biology and Invasion History, pp. 1-14 Chapter 1
in: Van Driesche, R.G. and Reardon, R., Ed. Biology and Control of
Emerald Ash Borer. USDA, Forest Service, Forest Health Technology
Enterprise Team, Morgantown, WV, FHTET-2014-09, March 2015. Referred
to below as Haack et al. https://www.fs.fed.us/foresthealth/technology/pdfs/FHTET-2014-09_Biology_Control_EAB.pdf.
\3\ See Abell, K., et. al., Trapping Techniques for Emerald Ash
Borer and Its Introduced Parasitoids, Chapter 7 in: Van Driesche,
R.G. and Reardon, R., Ed. Biology and Control of Emerald Ash Borer.
USDA, Forest Service, Forest Health Technology Enterprise Team,
Morgantown, WV, FHTET-2014-09, March 2015.
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Second, the regulations did not prevent the spread of EAB
throughout its geographical range, which has expanded over time. In
fiscal year (FY) 2016 alone, APHIS issued 16 Federal Orders designating
additional quarantined areas for EAB, and many of these Federal Orders
designated multiple quarantined areas \4\. For example, one of the
Federal Orders designated an additional 44 counties as quarantined
areas for EAB. From an initial quarantined area of 13 counties in
Michigan, now more than one quarter of the geographical area of the
conterminous United States is under quarantine for EAB.
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\4\ To view these Federal Orders, go to https://www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/emerald-ash-borer/ct_quarantine.
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In light of these difficulties, on September 19, 2018, we published
in the Federal Register a proposed rule (83 FR 47310-47312, Docket No.
APHIS-2017-0056) to remove the domestic quarantine regulations for EAB
in order to direct available resources towards management and
containment of the pest.\5\ We solicited comments concerning our
proposal for 60 days ending November 19, 2018.
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\5\ To view the proposed rule, its supporting documents, and the
comments that we received, go to https://www.regulations.gov/docket?D=APHIS-2017-0056.
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We received 146 comments by the close of the comment period. They
were from another Federal agency, State departments of agriculture,
State departments of forestry and/or natural resources, Tribal nations,
a group representing the wooden pallet industry within the United
States, conservation groups, arborists, foresters, and private
citizens.
Of the commenters, 25 suggested that we finalize the proposed rule
as written. The remaining commenters raised concerns or questions
regarding the rule and its supporting documents. We discuss these
comments below, by topic.
Basis for the Proposed Rule
Several commenters interpreted the proposed rule to be based on a
determination that EAB is not a significant plant pest. Similarly,
several commenters interpreted the proposed rule to be based on a
desire to provide relief to regulated entities within areas currently
quarantined for EAB, or a desire to reduce Federal regulation. One
[[Page 81086]]
commenter stated that the basis for the rule was a February 2017
Executive Order 13771, which directs Federal agencies to identify two
regulations for repeal for each new regulation promulgated.\6\ Another
commenter stated that the rule was an effort by Northern and Middle-
Atlantic States to deliberately adversely impact Southern and Western
States. The commenters cited multiple examples of EAB's
destructiveness, and urged us to retain the regulations.
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\6\ See https://www.federalregister.gov/documents/2017/02/03/2017-02451/reducing-regulation-and-controlling-regulatory-costs.
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The proposed rule was not based on a determination that EAB is an
insignificant plant pest, nor was it based on a desire to reduce or
repeal Federal regulations or provide regulatory relief to currently
regulated entities, regardless of the efficacy of the regulations, or a
desire by Northern and Middle-Atlantic States to deliberately adversely
impact other States. Rather, it was based on a determination that the
domestic quarantine regulations have been unable to prevent the spread
of EAB. This is reflected in the size of the quarantined area for EAB
at the time the 2018 proposed rule was issued. At that time, more than
1,100 counties in the United States were under quarantine, comprising
an area of almost 880,000 square miles, or more than one quarter of the
geographical area of the conterminous United States. Since the proposed
rule was issued, three additional States, nine counties, and portions
of an additional county were added to the quarantined area for EAB. As
we mentioned earlier in this document, this represents an exponential
increase from the initial quarantined area, which was comprised of 13
counties in Michigan.
We discuss some of the factors that led to the spread of EAB later
in this document, under the section titled ``Need to Retain Existing
Quarantine Regulations.''
Efficacy of Existing Quarantine Regulations
A number of commenters interpreted the rule to be based on our
determination that the domestic quarantine regulations have proven
ineffective at preventing the spread of EAB, but disagreed with the
validity of this determination. The commenters often cited personal
experience or anecdotal examples of the efficacy of the current
regulations or pointed to the efficacy of other Federal domestic
quarantine programs administered by APHIS, such as that for Asian
longhorned beetle (ALB).
We acknowledge the possible validity of the experiences and
examples provided by the commenters, but do not consider them to be
indicative of the overall efficacy of the domestic quarantine program
for EAB. On the whole, the program has been unable to prevent the
spread of EAB, as evidenced by the current size of the quarantined area
relative to the 13 counties in Michigan that comprised the initial
quarantined area.
In that regard, the success of one Federal domestic quarantine
program is not indicative of the success of another. For example, as
one commenter pointed out, APHIS and State departments of agriculture
have been able to eradicate several localized populations of ALB and
release areas from quarantine. This has not occurred within the EAB
program; not a single area has ever been released from quarantine.
One commenter stated that there was no means for APHIS to ascertain
the full effects of the current program at precluding the spread of
EAB.
We agree that ascertaining each and every effect of the current
program is not possible, but do not consider such an evaluation
necessary in order to determine whether the program on the whole has
been able to prevent the spread of EAB. The size of the quarantined
area for EAB at the time the proposed rule was issued, relative to the
size of the initial quarantined area of 13 counties in Michigan, is a
reliable indicator that the program was unable to prevent the spread of
EAB.
Need To Retain Existing Quarantine Regulations
Many commenters stated that it was necessary to retain the
regulations to prevent the further spread of EAB, and that removal of
the regulations would place them at a heightened risk of EAB
introduction and establishment. Some commenters lived within currently
quarantined areas but stated that EAB was not present in their area or
was not widely prevalent based on survey results. Other commenters
lived in areas that were immediately outside the quarantined areas and
were concerned that removing restrictions on the movement of host
material could hasten the introduction of EAB into their area. Finally,
some of the commenters lived in Western States (States west of the
Rocky Mountains) and stated that, because of geographical boundaries
between the currently quarantined areas and their State, natural spread
was unlikely, at least for the foreseeable future. Those commenters
stated that the only way EAB was likely to be introduced to their State
was through human-assisted movement, and that removing the quarantine
would increase the likelihood that infested material was moved into
their State. A number of these commenters stated that native ash in
their State was in riparian or forest environments, and that
deforestation as a result of EAB could have significant adverse
impacts, such as increased likelihood of flooding.
With regard to those commenters within the currently quarantined
areas, we disagree that removing the Federal quarantine regulations
places the commenters at a heightened risk of EAB spread or has
environmental or economic impacts. This is for two reasons.
The first reason is that, in 2012, APHIS issued a Federal Order \7\
allowing unrestricted interstate movement of host articles within a
contiguous quarantined area. This Federal Order is still in effect;
thus, finalizing the proposed rule will have no net impact on
interstate movement of articles within this area.
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\7\ The Federal Order is available at https://nationalplantboard.org/wp-content/uploads/docs/spro/spro_eab_2012_05_31.pdf.
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The second reason is that, consistent with our statutory
limitations under the Plant Protection Act (PPA, 7 U.S.C. 7711 et
seq.,) the Federal quarantine regulations for EAB pertained only to
interstate movement of regulated articles in commerce. This did not
address noncommercial movement of regulated articles, intrastate
movement, or natural spread. With respect to natural spread, research
suggests a mated female EAB can fly up to 12.5 miles a day.\8\
Moreover, a female that mates can live up to 6 weeks.\9\ This does not
preclude the possibility that some mated female EAB may fly more than
100 miles before mortality.
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\8\ Taylor, R.A.J., et al. Flight Performance of Agrilus
planipennis (Coleoptera: Buprestidae) on a Flight Mill and in Free
Flight. 2010. Journal of Insect Behavior. 23: 128-148.
\9\ Cappaert, David, et al. 2005. Emerald Ash Borer in North
America: A research and regulatory challenge. American Entomologist.
51: 152-165.
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With regard to those commenters currently immediately outside the
quarantined area, we also disagree that removing the Federal quarantine
regulations places the commenters at a heightened risk of EAB spread or
has environmental or economic impacts. This is also for two reasons.
The first is the ability of EAB to naturally and rapidly spread without
human assistance. The second is the lack of effective detection methods
for EAB. EAB is a cryptic pest and there is not an effective pheromone
lure for EAB;
[[Page 81087]]
thus, trap catches are often a lagging indicator of a long-standing and
sizable established population for EAB.\10\ In general, when EAB is
initially detected via survey, we have found that an established
population has typically been present in the area a minimum of 3 to 5
years undetected.\11\
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\10\ See Ryall, K., Detection and Sampling of Emerald Ash Borer
(Coleoptera: Buprestidae) Infestations, 2015. Can. Entomol. 147:290-
299. Found at https://www.cambridge.org/core/journals/canadian-entomologist/article/detection-and-sampling-of-emerald-ash-borer-coleoptera-buprestidae-infestations/671D5F7160E19CDA09A4159D4B903A1B. See also Marshall, J.M., A.J.
Storer, I. Fraser, and V.C. Mastro. 2010. Efficacy of trap and lure
types for detection of Agrilus planipennis (Col., Buprestidae) at
low density. Journal of Applied Entomology, Vol. 134, 4, pp. 296-
302. Found at: https://onlinelibrary.wiley.com/doi/full/10.1111/j.1439-0418.2009.01455.x.
\11\ See Haack et al.
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Visual detection of EAB also has significant limitations. Visual
detection is almost always based on finding signs or symptoms of EAB
infestation in declining ash trees, rather than visual detection of the
pest itself. There is thus a lag period between initial establishment
and detection, and correspondingly, between initial pest establishment
and designation of the area as a quarantined area for EAB. This is also
why we do not consider areas of low pest prevalence to exist for EAB--a
handful of detections are indicative of a much larger established
population.\12\
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\12\ See https://www.aphis.usda.gov/plant_health/plant_pest_info/emerald_ash_b/downloads/EAB-FieldRelease-Guidelines.pdf.
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With regard to commenters in Western States, we disagree that the
only way EAB could enter the State is through human-assisted movement.
We acknowledge that the presence of geographical barriers, such as the
Rocky Mountain range, and the absence of host material along the Great
Plains, could significantly impede the rate of natural spread of EAB.
We also acknowledge that EAB's feeding patterns in the absence of ash
and deciduous hardwood are still being researched and evaluated, and it
is, accordingly, possible that EAB does not adapt quickly to the
absence of preferred host material. However, it is the Agency's
experience that widely prevalent plant pests tend, over time, to spread
throughout the geographical range of their hosts, and we have no reason
to consider EAB to be biologically unique in this manner.
Nonetheless, we agree that, in the absence of Federal regulations,
there could be a higher likelihood that EAB will be introduced into a
Western State sooner through the movement of infested host material
than would occur through natural spread. However, the degree to which
this likelihood is increased is difficult to quantify. In the absence
of Federal regulations, States are free to establish their own
regulations governing the movement of EAB host material into their
State, and at least one such Western State signaled their intent to do
so in their comments on the rule. Additionally, there will still be
awareness and outreach efforts, which we discuss later in this
document, to dissuade the public from non-commercial movement of EAB
host material into Western States. To the extent that we can, we will
support communities in these efforts, and, we have delayed publication
of this final rule to afford States time to develop regulations
regarding the movement of EAB host material.
Several commenters stated that the economic analysis that
accompanied the proposed rule was flawed insofar as it was based on the
same assumption that removing the regulations would not contribute to
the spread of EAB. A number of the commenters also stated that the rule
should have been accompanied by an environmental assessment or
environmental impact statement assessing the likelihood of cumulative
impacts of human-assisted spread of EAB that would not otherwise occur
if the regulations remained in place.
We agree that there is an economic cost if EAB is introduced into a
Western State sooner through the movement of infested host material
than would occur through natural spread. For that reason, to the extent
that we can, in the economic analysis for this final rule, we list
activities that have historically been associated with the new
introduction of EAB into a previously unaffected area, along with a
range of costs for each activity. However, we also acknowledge a high
degree of uncertainty regarding the number of entities that will incur
those costs, for the reasons mentioned above.
Finally, we considered the proposed rule to be categorically exempt
from preparation of an environmental assessment or environmental impact
statement. We did this because the National Environmental Policy Act
(NEPA, 42 U.S.C. 4231 et seq.,) and subsequent agency implementing
regulations instruct Agencies to evaluate the environmental impacts of
proposed Federal actions. We determined that this action is a class of
actions previously determined to meet categorically excludable criteria
as established in 7 CFR 372.5. A record of categorical exclusion
analysis was prepared to assess and confirm that there would be no
adverse environmental impacts as a result of this rulemaking.
We acknowledge that commenters suggested that we consider the
impact of human-assisted spread of EAB that would not otherwise occur.
However, our experience with EAB has shown that human-assisted spread
continued regardless of the regulations, which are limited, and that
the natural spread of EAB is rapid, significant, and extremely
difficult to control. For the reasons discussed above, this remains our
determination.
Two commenters asked if any studies exist that examine the possible
ecological and societal impacts of EAB establishment in the Western
United States. One of the commenters stated that, if no such studies
exist, APHIS should conduct such a study prior to issuing a final rule.
We are not aware of any such studies. For reasons discussed in the
section below, we do not consider delays in issuing or making effective
this final rule to be in the best long-term interests of the Federal
EAB program.
Request for Delay of Final Rule
A number of commenters stated that Federal deregulation of EAB is
probably inevitable given the scope of the area under quarantine, but
asked for a delay in the publication or effective date of the final
rule to allow the commenter's State or community to plan for
deregulation. Several of these commenters stated that they were unaware
of APHIS' intent to deregulate EAB until the proposed rule was issued
and stated that APHIS had done an inadequate job communicating this
intent. All commenters urged us to continue regulatory and enforcement
activities until the rule became effective.
The proposed rule is a result of several years of public
discussions with an increasing number of stakeholders. APHIS began
expressing concerns regarding the efficacy of the EAB program in public
forums as early as 2012, when the FY 2013 budget submitted to Congress
indicated that we had not discovered effective tools to prevent the
spread of EAB, and that, as a result, we had not discovered a means to
efficiently use resources to prevent the spread of EAB.\13\ In the same
budget,
[[Page 81088]]
we also indicated that biocontrol activities could be a more viable
long-term strategy than regulatory and enforcement activities.
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\13\ ``APHIS continues to face challenges in addressing tree and
wood pests such as EAB, and seeks to efficiently use resources to
address pests where success is achievable, such as eradicating the
ALB. The EAB is an exotic forest pest that has killed millions of
ash trees in the United States. First found in Michigan in 2002, it
has spread to 14 additional States (Illinois, Indiana, Iowa,
Kentucky, Maryland, Minnesota, Missouri, New York, Ohio,
Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin) and
continues to spread. Due to the lack of tools available, the Agency
changed focus from an eradication strategy to preventing the human-
assisted spread and minimizing the impacts of natural spread of the
pest through early detection and quarantine regulations.
With the requested decrease, the Agency would further reduce its
role in addressing the EAB and scale back activities to manage an
outreach program, provide national coordination and oversight, and
continue developing biological control agents. Biological control is
the most promising option for managing EAB populations over the long
term. In 2013, APHIS proposes to release biological control agents
in all States that request releases.'' Found at: https://www.usda.gov/obpa/congressional-justifications/fy2013-explanatory-notes.
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In 2015, we discussed the possibility of deregulation of EAB to the
Continental Dialogue on Non-Native Forest Insects and Diseases, an
audience of State and local governments, forestry groups, non-
governmental organizations, and other Federal agencies.\14\ In 2016, we
discussed possibly deregulating EAB, and shifting program resources to
biocontrol activities, with the National Association of State Foresters
and the National Plant Board, which represents the plant protection
division of State departments of agriculture; these discussions
continued into 2017.\15\ Additionally, throughout the development of
the proposed rule, APHIS talked with numerous State, local, and Tribal
communities on a regular basis to discuss concerns that the communities
had with possible deregulation. This included the ongoing discussion
with the National Association of State Foresters and the National Plant
Board mentioned above, a Tribal meeting in which nine Tribes who had
expressed concerns about the rule were invited to further elaborate on
those concerns and discuss possible remediations, several webinars with
State departments of agriculture, and discussions with the New York
Partnership for Invasive Species Management and The Nature Conservancy.
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\14\ For further information regarding the Continental Dialogue
on Non-Native Forest Insects and Diseases, go to https://continentalforestdialogue.org/.
\15\ For further information regarding the National Association
of State Foresters, go to https://www.stateforesters.org/. For
further information regarding the National Plant Board, go to
https://nationalplantboard.org/.
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The proposed rule itself provided notification pursuant to the
Administrative Procedure Act (APA, 5 U.S.C. 505 et seq.) of APHIS'
intent to remove the domestic quarantine regulations for EAB, and APHIS
provided notification of the publication of the rule through the APHIS
Stakeholder Registry in accordance with standard Agency practices.
We recognize the damage and impact that EAB can inflict on a
community and appreciate the desire of commenters to be afforded
additional time to prepare for possible deregulation within their
particular State or community. As we mentioned previously, to the
extent that we can, we will support communities in these efforts, and
we have delayed publication of this final rule to afford States time to
develop regulations regarding the movement of EAB host material.
However, we do not believe an additional delay in the effective date of
the rule to be in the best interests of the Federal EAB program.
As mentioned above, regardless of funding or tactics employed, the
EAB domestic quarantine regulations have been, on the whole,
ineffective at preventing the spread of EAB, especially given the
natural dispersion capabilities of the pest. Continuing to devote
program resources to regulatory and enforcement activities that have
proven thus far to be ineffective over an ever-expanding quarantined
area is an inefficient use of those resources.
Additionally, continuing to devote resources to these activities
limits APHIS from reallocating the resources to activities that could
be of greater long-term benefit to slowing the spread of EAB or helping
affected communities recover from EAB infestation. These include
further development and deployment of EAB biological control organisms;
further research into integrated pest management of EAB that can be
used at the local level to help safeguard an ash population of
significant importance to a community; and further research, in tandem
with the U.S. Department of Agriculture (USDA) Forest Service and other
Federal agencies, into the phenomenon of ``lingering ash,'' or ash
trees that are still alive and present in the landscape in areas of
otherwise heavy infestation, and integration of the findings of that
research into the EAB program.
Several commenters asked for APHIS to provide guidance or best
practices in management of EAB to State and local communities prior to
issuing this final rule.
To the extent that resources allow, we have provided and intend to
continue to provide such assistance. For example, we have an agreement
with the North Carolina State University, North Carolina Department of
Agriculture and Consumer Services, and the City of Raleigh, NC at their
waste-water management location to assist these organizations in
investigating EAB phenology within a watershed environment.
Biological Control for EAB
Several commenters construed the proposed rule to suggest that
APHIS has identified biological control (biocontrol) organisms that are
effective at preventing the spread of EAB. The commenters asked for the
scientific evidence in support of those claims. Other commenters stated
that it was their understanding that several of the organisms had
limited geographical ranges and could not be used in every area of the
United States that is currently infested with EAB. Several commenters
stated that the ``real world'' efficacy of biocontrol within the EAB
program had not been proven and all usage to date has been experimental
and study based. Commenters also asked for more information regarding
the biocontrol agents and asked whether APHIS has evaluated the agents
for their interactions with non-target organisms and other effects on
the environment prior to authorizing their use within the EAB program.
While we did state in the proposed rule that biocontrol has been a
``promising approach'' towards mitigating and controlling for EAB, we
also clarified that the biocontrol efforts that demonstrated such
promising results had been in protecting ash regrowth in areas that had
been previously infested with EAB.\16\ We did not state that we had
discovered a biocontrol organism that would be effective at preventing
EAB from spreading into currently unaffected areas. The biocontrol
organisms currently used within the EAB program are tiny stingless
parasitic wasps that reproduce within EAB. Because of their dependency
on an EAB host, these parasitoids cannot be used in an area until it is
already infested with EAB.
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\16\ See 87 FR 47310.
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Four biocontrol organisms are currently used by the EAB program
within areas that are infested with EAB. The four organisms currently
used are Spathius agrilli, Spathius galinae, Tetrastichus planipennisi,
and Oobius agrilli. Commenters are correct that the organisms differ in
terms of biology and ecological range. Information regarding the
biology of the organisms, as well as current parameters for their
release within the domestic quarantine program, are found here: https://www.aphis.usda.gov/plant_health/plant_pest_info/emerald_ash_b/downloads/EAB-FieldRelease-Guidelines.pdf. There are no current plans
to revise those parameters as a
[[Page 81089]]
result of this final rule; however, we consistently review emerging
research and recovery records to refine our approach.
Pursuant to APHIS' NEPA implementing regulations in 7 CFR part 372,
APHIS prepares environmental assessments before the initial release
into the environment of any biocontrol organism. Among other things,
these assessments evaluate known and possible non-target effects.
Several commenters asked APHIS to provide a specific budgetary
allocation or percentage of total program funding that we would commit
to allocating to biocontrol research and deployment following removal
of the domestic quarantine regulations.
We cannot project a specific budgetary allocation or percentage of
total funding to biocontrol efforts following deregulation. As we
discuss below, we have already begun to obligate program funds on
biocontrol in the coming years, and it is APHIS' current intent to
devote a substantial portion of funding for EAB each fiscal year to
biocontrol. However, APHIS regularly monitors all EAB program
activities for efficacy, including the use of biocontrol. If research
into integrated pest management or ``lingering ash'' suggests that
these are more efficient uses of program resources than biocontrol, we
will reallocate funds to these activities accordingly. Additionally, we
note that funding directed towards any tactic or technique in the EAB
program is contingent on the level of Federal appropriations for the
program as a whole, which can differ from fiscal year to fiscal year.
Several commenters expressed concern that the rule did not propose
a regulatory framework that would specify parameters for APHIS' release
of biocontrol organisms. The commenters stated that, in the absence of
such a framework, APHIS could divert funds to other tactics within the
EAB program or to another domestic quarantine program entirely
following removal of the domestic quarantine regulations for EAB.
We do not consider a regulatory framework for the release of
biological control to be necessary. As we mentioned above, guidelines
regarding the release of biocontrol organisms have already been
developed and are publicly available, and APHIS has adhered to them in
the absence of a regulatory framework for the release of biological
control within the EAB program. Additionally, as we have to date, we
will update these guidelines on an ongoing basis to incorporate
additional findings or the approval of additional biocontrol organisms.
We will notify the public via the APHIS Stakeholder Registry of any
substantive change to the guidelines. A sign-up for the Registry is
found here: https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/new.
Because of the time required to rear, evaluate, and release
parasitoid populations, budgeting for EAB biocontrol requires
allocating funds in one fiscal year for the development of biocontrol
organisms that will be released into the environment in another fiscal
year. Accordingly, we do not need to put a regulatory framework in
place in order to ensure that funds are obligated for release efforts
in the coming years; these funds have already been obligated.
There is a possibility that, in subsequent years, APHIS could
divert funding from biocontrol to other tactics and techniques within
the EAB program. However, we consider this flexibility to be in the
best interest of the EAB program. As we mentioned above, we regularly
monitor all EAB program activities for efficacy. If a program activity
proves to be a more effective use of Agency funds than biocontrol, it
is appropriate for us to reallocate funding accordingly.
Similarly, Federal funding for the EAB program is part of a larger
line item Congressional appropriation for Tree and Wood Pests, which
also is used to fund our gypsy moth and ALB programs, among others.
Each fiscal year, APHIS evaluates how best to allocate the funding
among the programs based on program needs and efficacy of the program
to date.
Finally, several commenters urged us to increase funding for
biocontrol within the EAB program while also maintaining the current
level of funding for regulatory and enforcement activities.
This is not possible given current funding levels and existing
Agency obligations for the pest programs within the Tree and Wood Pest
line item. That being said, regardless of the level of funds available
at APHIS' disposal for EAB, we no longer consider regulatory and
enforcement activities to be an effective use of program funds.
Alternatives to the Proposed Rule
Several commenters agreed that the EAB quarantine regulations had
been unable to prevent the spread of EAB but suggested alternate
tactics that they believed could slow the further spread of EAB.
Suggested tactics were: Mechanical removal of all ash trees in the
United States; mechanical removal of ash in urban environments outside
of the quarantine and replanting with trees that are not a host for
EAB; prophylactically treating ash trees to preclude EAB infestation
(either as a stand-alone mitigation or in conjunction with restrictions
on the movement of host material); safeguarding culturally or
environmentally important ash populations, such as those in riparian
areas or along watersheds, through integrated pest management; removing
the Federal quarantine on contiguously quarantined areas while
maintaining it in areas that are adjacent to currently unaffected
areas; requiring all EAB host material to be heat treated or debarked
prior to movement; providing economic incentives to mills and
lumberyards to treat all hardwood lumber prior to interstate movement;
requiring all container ships to be fumigated for EAB upon arrival into
the United States; devoting all Federal resources to increased
surveillance in currently unaffected areas; increasing EAB funding by
drawing from other existing Agency funds or establishing an interagency
working group to pool funds; or lobbying Congress and encouraging
others to lobby Congress for increased appropriations. We discuss these
suggestions below in the order in which they are presented in this
paragraph.
Removal of all ash trees in the United States, or in areas of the
United States in which EAB is not currently known to occur, is
impracticable, as is prophylactic treatment of all ash.
Safeguarding culturally or environmentally important local
populations of ash through integrated pest management may be possible
in some instances, and APHIS has supported and will continue to
evaluate requests by Tribal, local, or regional communities for such
management; as noted above, we are currently engaged in one such effort
with the City of Raleigh, NC. However, integrated pest management for
EAB is both cost- and labor-intensive and cannot be done on a national
level.
As we mentioned above, in 2012, we issued a Federal Order which
relieved restrictions on the interstate movement of host material for
EAB within contiguously quarantined areas. This was coupled with
reallocating resources to outlying areas within the quarantine.
Accordingly, this solution has already been implemented and has not
proven effective at preventing the spread of EAB to unaffected areas.
While debarking and heat treatment are effective at addressing
those two pathways, as we mentioned previously in this document, there
are numerous other pathways that have contributed to
[[Page 81090]]
the overall spread of EAB within the United States, many of which are
outside the scope of APHIS' statutory authority.
Because of the lack of efficacy of the traps and lures for EAB, as
discussed above, we do not consider allocating all funding to increased
surveying with traps to be an effective use of Federal resources.
APHIS does not have the legal authority to provide financial
incentives for phytosanitary treatments.
Revising import requirements relative to EAB host material is
outside the scope of this rulemaking. However, because EAB is
established and widespread in the United States, we do not consider
mandatory fumigation at ports of entry to be warranted or an effective
deterrent to the further spread of EAB within the United States.
As we mentioned previously in this document, APHIS' EAB funding is
drawn from a larger line item that addresses Tree and Wood Pests within
APHIS' appropriation from Congress. APHIS has some flexibility within
the Tree and Wood Pests line item itself to move money between domestic
quarantine programs within the line item, which includes funding for
ALB, gypsy moth, and other pests, in addition to EAB, but we must
consider the best use of the funds to meet our overall goals of using
the funds as effectively as possible in order to safeguard American
agriculture.
Because of the sheer size of the current quarantined area for EAB,
the historic ineffectiveness of quarantine and enforcement measures,
and the lack of optimal detection methods, we do not have a sufficient
basis for allocating or seeking additional resources through the
appropriations process for the EAB program. For these same reasons,
while we have partnered and continue to explore partnerships with other
Federal agencies on EAB research and methods development, such as
USDA's Agricultural Research Service and Forest Service, we do not
believe that requesting additional budgetary resources from other
Federal agencies to allocate to existing regulatory and enforcement
strategies will prevent the spread of EAB or be an effective use of
those funds.
Finally, APHIS is prohibited from using appropriated funds to lobby
Congress, directly or indirectly, for Federal funding without explicit
Congressional authorization to do so (see 18 U.S.C. 1913). For the
reasons discussed in the previous paragraph, we do not consider seeking
Congressional authorization to do so to be warranted.
Status of Surveys for EAB
Several commenters asked whether Federal surveys for EAB will
continue if EAB is deregulated. A number of these commenters asked, if
our intent was to continue surveys, what parameters we would use
following deregulation. A few commenters stated that they had heard
that ``citizen surveys'' would be employed following deregulation and
asked for further information regarding the meaning of that term.
Federally contracted trapping survey for EAB ceased as of 2019.
APHIS will provide traps and lures to State and Tribal cooperators
without cost, as requested, out of our existing supply until it is
depleted. However, States and Tribes should be aware of some of the
limitations of these traps and lures discussed earlier in this
document. (For further discussion of these limitations, see the section
heading ``Need to Retain Existing Quarantine Regulations'').
``Citizen surveys'' refer to reporting done by the general public
of EAB or signs and symptoms of EAB infestation. In recent years,
citizen detections have accounted for the vast majority of all new
identifications of EAB infestations. Citizens who detect signs or
symptoms of EAB have been encouraged to contact their State Plant
Regulatory Official, or SPRO. A list of all SPROs is found here:
https://nationalplantboard.org/membership/.
Status of Outreach
Many commenters stated that the proposed rule undercut
communications and outreach efforts in their State or community to warn
the public about the severity of EAB. A number of these commenters
stated that the rule was in tension with communication efforts to warn
the public about the plant pest risk associated with the movement of
firewood, in particular. Several commenters requested outreach
resources from APHIS following removal of the quarantine regulations or
inquired regarding what outreach APHIS had planned. On a related
manner, several commenters asked what efforts APHIS would take,
following deregulation, to continue outreach and education related to
the movement of firewood.
As we discussed previously in this document, the proposed rule was
not based on a determination that EAB is an insignificant plant pest,
nor did we claim it to be. However, we do acknowledge that local and
regional campaigns may have often emphasized the importance of
compliance with Federal EAB regulations, and the proposed rule could
have created difficulties with regard to those communication
strategies. To that end, we will work with States, through associations
such as the National Plant Board, to promote awareness of the dangers
of EAB following removal of the domestic quarantine regulations.
APHIS outreach related to the movement of firewood will remain
substantially similar or increase following removal of the domestic
quarantine regulations for EAB. We will continue to encourage the
public to buy firewood where they burn it and to refrain from moving
firewood to areas of the United States that are not under Federal
quarantine for other pests of firewood.
In that regard, we disagree with commenters that the deregulation
of EAB undermines national communications efforts regarding the
movement of firewood. The primary national communications tool to warn
the public about the plant pest risk associated with the movement of
firewood is the Don't Move Firewood campaign, which is administered by
The Nature Conservancy with support from APHIS and other Federal
agencies.\17\ This campaign has consistently stressed that firewood is
a high-risk pathway for many pests of national or regional concern, and
not just EAB. To the extent that the communication mentioned EAB, it
was as an illustrative example of one such pest. We have, however,
allocated funds to The Nature Conservancy so that the Don't Move
Firewood campaign continues to promote awareness of EAB as a pest of
firewood in currently unaffected or recently affected States.
---------------------------------------------------------------------------
\17\ See https://www.dontmovefirewood.org/.
---------------------------------------------------------------------------
State Regulation of Firewood and Other EAB Host Material
Several commenters stated that, in the absence of Federal
regulation of EAB, States would be free to establish their own
regulations regarding the movement of EAB host material. A number of
these commenters stated that this could result in State regulations
that differed significantly from State to State, and that differing
State regulations could be difficult for producers and shippers to
comply with.
We agree with the commenters that one of the upshots of the rule is
the possibility of States developing their own interstate movement
requirements for EAB host articles, and, as we noted previously in this
document, one State department of agriculture signaled their intent to
issue such regulations during the comment period for the proposed
[[Page 81091]]
rule. While States will be free to set requirements as they see fit, we
have taken efforts, in coordination with State departments of
agriculture, to develop a template for State regulations regarding the
movement of certain EAB host materials. We discuss these efforts below.
Several commenters pointed out that, under the current domestic
quarantine regulations for EAB, firewood is a regulated article, and
must either be debarked or heat treated prior to interstate movement.
The commenters stated that firewood is a pathway for many other plant
pests, and that the EAB domestic quarantine regulations serve to
preempt what otherwise is a significant number of differing State
requirements regarding the movement of firewood. Some commenters urged
us to retain firewood as a regulated article for EAB; others urged us
to propose a distinct Federal regulation for the interstate movement of
firewood; others asked us to coordinate with State departments of
agriculture to establish a coordinated framework for State regulations
of firewood. One commenter stated that we should monitor and oversee
the implementation of such State regulations.
Maintaining the domestic quarantine regulations for EAB but
limiting the scope of regulation to firewood would require us to
continue to devote program resources to regulatory and enforcement
activities. As we mentioned above, this would preclude the resources
from being used on other non-regulatory activities and initiatives that
we consider to be in the best long-term interest of the Federal EAB
program.
In 2010, we prepared a risk assessment regarding the plant pest
risks associated with the movement of firewood.\18\ While the
assessment identified many significant plant pests associated with
firewood, the assessment also found that many of these pests were only
economically significant if they established in a certain region of the
country, and thus did not always warrant official control. Concurrent
to the development of the assessment, a National Firewood Task Force
was convened by the National Plant Board, composed of Federal, State,
and nongovernmental organization representatives.
---------------------------------------------------------------------------
\18\ See https://www.aphis.usda.gov/import_export/plants/plant_imports/firewood/firewood_pathway_assessment.pdf.
---------------------------------------------------------------------------
While both the risk assessment and the Task Force suggested a
coordinated national approach to mitigate the risk associated with the
movement of firewood, APHIS encountered several factors that suggested
that Federal regulation of firewood itself, independent of any
particular domestic quarantine program, would not be operationally
feasible. Regulating at the national level for regionally significant
pests could result in regulations that were overly restrictive for some
States and not commensurate with risk; requiring firewood to be heat
treated prior to movement (which was recommended by the Task Force)
would not be operationally feasible in the winter for producers in
Northern States, and thus a de facto prohibition on interstate
commerce; and Federal regulation would not address significant non-
commercial pathways, such as campers moving it to campgrounds and
national parks.
For all these reasons, APHIS and the National Plant Board
ultimately decided that the best national strategy was (1) the
development of a standardized template that States may choose to use
for their regulation of firewood, in conjunction with (2) a national
outreach campaign to alert the public to the plant pest risks
associated with the non-commercial movement of firewood.
With regard to the first component of that strategy, the National
Plant Board has recently developed this template, with APHIS support,
and distributed it to State departments of agriculture to aid in
development of State regulations. If a State requests our oversight of
the implementation of their State regulations, we will assist to the
degree we can; however, such oversight is voluntary, and APHIS cannot
compel States to do so. The National Plant Board has also supplemented
this template by developing best management practices regarding the
interstate movement of firewood for the purposes of heating a home.\19\
---------------------------------------------------------------------------
\19\ Both the template and the recommendations are found in this
document: https://nationalplantboard.org/wp-content/uploads/docs/docs_policies/firewood_2020_2.pdf.
---------------------------------------------------------------------------
With regard to the second, as we mentioned previously in this
document, APHIS will continue to warn the public about the dangers of
moving firewood following deregulation of EAB through the Don't Move
Firewood campaign.
One commenter asked how the plant pest risks associated with the
interstate movement of ash nursery stock will be addressed following
deregulation of EAB. As is the case with all EAB host materials, States
will be free to regulate the movement of the nursery stock into their
State as they see fit.
Tribal Concerns
A number of Tribal nations commented in opposition to the proposed
rule. Many of these Tribes stated that ash was of economic and cultural
importance to their Tribe. Several Tribes indicated that ash was also
of religious significance to their Tribe, insofar as the Tribe's
creation heritage stressed its importance, and two Tribes indicated
that their Tribe relied on ash for ecological purposes. Several of the
Tribes mentioned that they had raised this concern to APHIS during
Tribal consultation and stated that the rule was therefore in violation
of Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' One of the commenters also suggested the rule was
issued in violation of the National Historic Preservation Act (54
U.S.C. 300101 et seq.).
APHIS is committed to full compliance with Executive Order 13175
and the National Historic Preservation Act. To that end, we engaged in
Tribal consultation prior to the issuance of the proposed rule in
accordance with Departmental regulations and guidelines regarding the
order and the Act.
We acknowledge that several Tribes raised the concerns stated by
the commenters during Tribal consultation, and have dialogued with
those Tribes throughout the development of this final rule to identify
means to remediate these concerns. For example, APHIS partnered with
the U.S. Forest Service and University of Vermont to conduct a workshop
in May 2019 for nine Tribes that provided training to survey for EAB,
identify high value trees to preserve, and develop a best management
program including the release of biocontrol organisms.\20\ APHIS will
continue to host similar workshops to help Tribes preserve ash
populations of cultural significance to the Tribes.
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\20\ See https://www.uvm.edu/rsenr/towards-preservation-cultural-keystone-species-assessing-future-black-ash-following-emerald.
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However, for the reasons discussed above, we have decided that the
only viable long-term use of Federal resources within the EAB program
entails removing the domestic quarantine for EAB and reallocation of
resources currently devoted to regulatory and enforcement activities to
other purposes.
In this regard, we disagree with the commenters that the issuance
of the proposed rule violated Executive Order 13175 or the National
Historic Preservation Act. Neither the order nor the Act precludes a
Federal agency from
[[Page 81092]]
acting if Tribes raise concerns regarding the action contemplated;
rather, the order and the Act dictate sustained and meaningful
consultation with Tribes to resolve concerns that are raised. APHIS has
engaged and continues to engage in such consultation.
Further information regarding Tribal outreach efforts is contained
in the Tribal impact statement that accompanies this final rule.
Comments Regarding International Trade in EAB Host Articles
One commenter asked if we were also removing our regulations
regarding the importation of EAB host material from Canada.
We did not propose to do so because the regulations have prohibited
the importation of several EAB host articles, most notably ash wood
chips and bark chips, and have required phytosanitary treatments for
other articles that are effective not only for EAB, but also for other
wood-boring pests. As a result, we were uncertain of the plant pest
risk associated with the importation of EAB host material from Canada,
in the absence of EAB-specific prohibitions and restrictions and
considered it prudent to conduct a risk assessment before proposing any
revisions to those prohibitions and restrictions. That risk assessment
is ongoing.
Another commenter asked if we would still take action at ports of
entry if EAB is discovered on an imported host commodity. They pointed
out that the family to which EAB belongs is ``actionable'' in its
entirety.
If a pest is found on an imported EAB host commodity and can only
be identified taxonomically to family, we would continue to take action
on it; if we were able to identify it as EAB, we would not. However,
States could petition us using APHIS' Federally Recognized State
Managed Phytosanitary Program, or FRSMP, to prohibit the movement of
material found to be infested into their State.\21\
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\21\ Information regarding the petition process within FRSMP is
found here: https://www.aphis.usda.gov/plant_health/plant_pest_info/frsmp/downloads/petition_guidelines.pdf.
---------------------------------------------------------------------------
A number of commenters stated that the rule could adversely impact
U.S. exports to Canada and Norway; some of the commenters asserted that
APHIS had failed to consider these potential impacts in the proposed
rule and its supporting documents.
These are potential impacts associated with deregulation of EAB and
were evaluated in the economic analysis associated with the proposed
rule.
Several commenters asked us if Canada or Mexico had expressed
concerns regarding deregulation of EAB within the United States,
particularly as it pertains to a heightened likelihood of possible
natural spread of EAB into their countries.
Neither Mexico nor Canada has expressed concerns regarding
deregulation of EAB. Canada has indicated that, in accordance with
standard policy, they will consider the United States to be generally
infested with EAB following deregulation. Possible implications of such
a designation are discussed in the final economic analysis.
Coordination With Other Federal Agencies
A commenter suggested we coordinate with the Forest Service to
establish a program to sustain and replace native ash trees.
APHIS has long partnered with the U.S. Forest Service to address
the spread of EAB within the United States and identify means of
protecting native ash trees. As we mentioned previously in this
document, these efforts include co-funding research into the phenomenon
of ``lingering ash,'' and co-hosting a May 2019 workshop for Tribal
nations to help them identify high value trees to preserve and develop
a best management program, including the release of biocontrol.
We intend to continue these efforts following deregulation, as
resources allow. However, as we also mentioned previously in this
document, a nationwide initiative to protect and/or replace native ash
populations is cost-prohibitive.
A commenter asked if APHIS had engaged the National Park Service
(NPS) about Federal deregulation of EAB and inquired whether NPS could
issue regulations prohibiting the movement of firewood into national
parks.
APHIS did not engage NPS prior to issuance of the proposed rule,
but we do see merit in increased collaboration between our agency and
theirs and will share the commenter's suggestion with NPS. This
collaboration is distinct from the issuance of this final rule, and
does not impact the conclusions of this rule.
Compliance With Executive Orders, Statutes, and International Standards
Several commenters stated that APHIS should not have designated the
rule not significant under Executive Order 12866 and suggested that the
Office of Management and Budget (OMB) should have reviewed the rule.
OMB, rather than APHIS, designated the rule not significant, and
thus not subject to their review under Executive Order 12866.
One commenter suggested that the proposed rule should have been
reviewed for legal sufficiency and compliance with statutory
requirements by USDA's Office of General Counsel (OGC).
OGC reviewed the proposed rule.
One commenter pointed out that the section of the proposed rule
beneath the heading, ``Paperwork Reduction Act,'' indicated that there
were no reporting, recordkeeping, or third-party disclosure
requirements associated with the proposed rule. The commenter asserted
that APHIS had therefore failed to evaluate whether there were such
Paperwork Reduction Act implications. Several other commenters stated
that the proposed rule should have been evaluated for Paperwork
Reduction Act implications.
The statement beneath the heading ``Paperwork Reduction Act'' in
the proposed rule did not mean that APHIS excluded the rule from
evaluation under the Paperwork Reduction Act, but rather that we did
evaluate the rule under the Paperwork Reduction Act and determined it
not to have reporting, recordkeeping, or third-party disclosure
requirements.
One commenter stated that the proposed rule was not reviewed for
compliance with Executive Order 13777.
The proposed rule was evaluated by the Regulatory Reform Officer
for USDA in accordance with Executive Order 13777.
Several commenters expressed concerns regarding the economic
analysis that accompanied the proposed rule.
We discuss these comments in the economic analysis that accompanies
this final rule.
Several commenters stated that APHIS had not complied with NEPA,
and an environmental assessment or environmental impact statement
should have accompanied the proposed rule.
For reasons discussed earlier in this document, we considered the
proposed rule to be a category of actions exempt under APHIS' NEPA
implementing regulations from preparation of an environmental
assessment or environmental impact statement.
One commenter stated that we had violated international standards
issued by the International Plant Protection Convention (IPPC), to
which the United States is a signatory. The commenter stated that the
IPPC definition of a quarantine pest requires pests that are
established within a country to be under official control in order to
continue to be considered of quarantine significance. The commenter
pointed
[[Page 81093]]
out that the proposed rule had not explicitly indicated that one of the
practical implications of removing the domestic quarantine regulations
for EAB would be that EAB would no longer be a quarantine pest. The
commenter asserted that this omission violated IPPC standards.
We agree with the commenter's interpretation of the IPPC definition
of quarantine pest, as well as the assertion that removing Federal
domestic quarantine regulations for EAB would remove its designation as
a quarantine pest under IPPC standards.
However, we do not agree that failing to mention this in the
proposed rule violates those standards. Insofar as the IPPC definition
of quarantine pest requires pests already established in a country to
be under official control in order to continue to be considered
quarantine pests, and the proposed rule proposed to rescind APHIS'
official control program for EAB, we consider the implication of that
rescission to be sufficiently clear without an explicit statement that
EAB will no longer meet the IPPC definition of a quarantine pest as a
result of this rule.
Miscellaneous
One commenter stated that ash helps reduce the impact of carbon
emissions into the atmosphere.
This is true but is not germane to this rulemaking.
One commenter asked if velvet ash was a host of EAB, and, if so,
whether it was a preferred host.
Because the geographic range of velvet ash within the United States
lies outside of the area of the United States where EAB is known to
occur, it is currently unknown how EAB and velvet ash will interact
within the environment of the United States. However, velvet ash was a
preferred host for EAB in China, and we have no reason to believe it
will not be a similar host within the United States.\22\
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\22\ See Wang et al. The biology and ecology of the emerald ash
borer, Agrilus planipennis, in China. Journal of Insect Science,
Volume 10, Issue 1, 2010, 128.
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A commenter asked if neonicotinoids were used as treatments within
the EAB program, and, if so, whether there were any plans to reduce or
eliminate their usage.
Neonicotinoids, particularly imidacloprid, were historically used
within the EAB program to treat ash trees. However, such treatments
have been almost entirely discontinued within the program, and, on the
rare occasion when they still occur, a different insecticide, emamectin
benzoate, which is not a neonicotinoid, is currently used. We have no
plans to use neonicotinoids within the context of integrated pest
management following deregulation of EAB.
A commenter suggested we prepare a ``Lessons Learned'' document to
evaluate the successes and failures of the domestic EAB program and to
determine what factors contributed to the ultimate ineffectiveness of
the program.
While we tend to reserve such evaluations for particular procedures
or policies in order to limit their scope and thus have greater
assurances about the accuracy of their conclusions, we will take the
commenter's suggestion into consideration.
Therefore, for the reasons given in the proposed rule and this
document, we are adopting the proposed rule as a final rule, without
change.
Executive Orders 12866 and 13771 and Regulatory Flexibility Act
This 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 an Executive Order
13771 deregulatory action. Details on the estimated cost savings of
this final rule can be found in the rule's economic analysis.
In accordance with 5 U.S.C. 603, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this final rule on small entities. Copies of
the full analysis are available by contacting the person listed under
FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see
ADDRESSES above for instructions for accessing Regulations.gov).
APHIS is removing the domestic quarantine regulations for the plant
pest emerald ash borer (EAB, Agrilus planipennis, Fairmare). This
action discontinues the domestic regulatory component of the EAB
program. Funding allocated to the implementation and enforcement of
these quarantine regulations will instead be directed to a non-
regulatory option of assessment of and deployment of biological control
agents for EAB. Biological control will be the primary tool used to
control the pest and mitigate losses.
There are currently more than 800 active EAB compliance agreements,
covering establishments that include sawmills, logging/lumber
producers, firewood producers, and pallet manufacturers. The purpose of
the compliance agreements is to ensure observance of the applicable
requirements for handling regulated articles. Establishments involved
in processing, wholesaling, retailing, shipping, carrying, or other
similar actions on regulated articles require a compliance agreement to
move regulated articles out of a Federal quarantine area.
Under this rule, establishments operating under EAB compliance
agreements will no longer incur costs of complying with Federal EAB
quarantine regulations, although States could still impose
restrictions. Businesses will forgo the paperwork and recordkeeping
costs of managing Federal compliance agreements. However, some
businesses may still bear treatment costs, if treatment is for purposes
besides prevention of EAB dissemination. Costs avoided under the rule
depend on the type of treatment and whether treatment still occurs for
purposes other than those related to the Federal EAB regulatory
restrictions on interstate movement.
Articles currently regulated for EAB include hardwood firewood,
chips, mulch, ash nursery stock, green lumber, logs, and wood packaging
material (WPM) containing ash. Articles can be treated by bark removal,
kiln sterilization, heat treatment, chipping, composting, or
fumigation, depending on the product.
For affected industries, we can estimate the cost savings if
treatment were to cease entirely (see table A). Currently, there are
166 active EAB compliance agreements where sawmills and logging/lumber
establishments have identified kiln sterilization as a method of
treatment. If all of these producers were to stop heat treating ash
lumber or logs as a result of this rule, the total cost savings for
producers could be between about $896,600 and $1.5 million annually.
There are 103 active EAB compliance agreements where heat treatment
of firewood is identified as a treatment. If all of these firewood
producers were to stop heat treating firewood as a result of this rule,
the total cost savings for producers could be between about $93,400 and
$700,000 annually.
There are 70 active EAB compliance agreements where heat treatment
is identified as the pallet treatment. If all of these producers are
producing ash pallets and were to stop heat treating as a result of
this rule, the total cost savings for producers could be between about
$8.8 million and $13.3 million annually. If all 349 establishments with
compliance agreements where debarking is identified as a treatment were
to stop secondary sorting and
[[Page 81094]]
additional bark removal in the absence of EAB regulations, the total
annual labor cost savings for producers could be about $1.7 million
annually. If all 397 establishments with compliance agreements where
chipping or grinding is identified as a treatment were to stop re-
grinding regulated materials in the absence of EAB regulations, the
total annual cost savings for producers could be about $10.6 million
annually. The annual cost savings for these various entities could
total between about $9.8 million and $27.8 million annually. (It should
be noted that this range of cost savings does not include compliance
costs for any State regulations that may be developed in the absence of
Federal regulation of EAB; this is because such costs are conjectural
and outside of Federal control.)
Table A--Potential Cost Savings if Treatment Were to Cease With Removal of EAB Regulation
----------------------------------------------------------------------------------------------------------------
Treatment costs
Product Treatment Compliance -------------------------------
agreements Low High
----------------------------------------------------------------------------------------------------------------
Value ($ millions)
----------------------------------------------------------------------------------------------------------------
Logs/Lumber........................... Kiln Sterilization...... 166 0.9 1.5
Debarking............... 349 .............. 1.7
Firewood.............................. Heat Treatment.......... 103 0.09 0.7
Pallets............................... Heat Treatment.......... 70 8.8 13.3
Chips, branches, waste, mulch, etc.... Chipping/Grinding....... 397 .............. 10.6
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Total............................. ........................ \1\ N/A 9.8 27.8
----------------------------------------------------------------------------------------------------------------
\1\ Cannot be summed. Some compliance agreements cover multiple products and treatment methods.
Since no effective quarantine treatments are available for ash
nursery stock, there are no compliance agreements issued for interstate
movement of that regulated article. According to the latest Census of
Horticultural Specialties, there were 316 establishments selling ash
trees, 232 with wholesale sales, operating in States that were at least
partially quarantined for EAB in 2014. Sales volumes for at least some
of these operations could increase if their sales are currently
constrained because of the Federal quarantine.
Internationally, deregulation of EAB may affect exports of ash to
Norway and Canada, the two countries that have import restrictions with
respect to EAB host material. Norway uses pest-free areas in import
determinations. With removal of the domestic quarantine regulations, it
is unlikely that Norway will recognize any area in the United States as
EAB free. All exports of ash logs and lumber to Norway will likely be
subject to debarking and additional material removal requirements. From
2014 through 2018, exports to Norway represented less than one-tenth of
one percent of U.S. ash exports. We estimate that labor costs for
overseeing the debarking on these exports total less than $500.
The United States also exports to Canada products such as hardwood
firewood, ash chips and mulch, ash nursery stock, ash lumber and logs,
and WPM with an ash component from areas not now quarantined. Canada
has indicated that they will consider the United States generally
infested for EAB following Federal deregulation, therefore, ash
products from areas outside the current U.S. quarantine area will be
subject to restrictions in order to enter Canada. New Canadian
restrictions will likely depend on the product and its destination
within Canada. In 2017 and 2018, Canada received about 3 percent of
U.S. ash lumber exports, and about 4 percent of U.S. ash log exports.
Additionally, of about 98,000 phytosanitary certificates (PCs) issued
from January 2012 through June 2019 for propagative materials exported
to Canada, a little more than 1 percent was specifically for ash
products. Based on available data, we estimate that additional heat
treatment costs and labor costs for overseeing debarking of ash lumber
and logs exported to Canada could range from about $55,000 to $94,400.
Because of the absence of a phytosanitary treatment for ash nursery
stock for EAB, we anticipate that exports of ash nursery stock to
Canada will be prohibited by Canada. From January 2012 through June
2019, ash products comprised a little more than one percent of
shipments of propagative material to Canada.
Taking into consideration the expected cost savings shown in table
A and these estimated costs of exporting ash to Norway and Canada
following deregulation, and in accordance with guidance on complying
with Executive Order 13771, the single primary estimate of the annual
cost savings of this rule is $18.8 million in 2016 dollars, the mid-
point estimate annualized in perpetuity using a 7 percent discount
rate.
EAB has now been found in 35 States and the District of Columbia
and it is likely that there are infestations that have not yet been
detected. Newly identified infestations are estimated to be 4 to 5
years or more in age. Known infestations cover more than 27 percent of
the native ash range within the conterminous United States.
EAB infestations impose costs on communities typically associated
with the treatment or removal and replacement of affected trees. In
addition, infestation can result in loss of ecosystem services.
Regulatory activities may slow the spread of EAB and delay associated
losses by inhibiting human-assisted dispersal of infestations. However,
consistent with APHIS' statutory authority, the activities only
mitigated one pathway for EAB spread, movement of host material in
interstate commerce. They did not address intrastate movement, non-
commercial movement, or natural spread, each of which is a known
pathway for the spread of EAB. As a result, regardless of funding or
tactics employed, the EAB domestic quarantine regulations have been, on
the whole, unable to prevent the spread of EAB.
Any delay in EAB spread attributable to the quarantine regulations
and associated delay in economic and environmental losses will end with
this rule. The domestic quarantine regulations for EAB have not
substantially reduced the likelihood of introduction and establishment
of the pest in quarantine-adjacent areas. Interstate movement of EAB
host articles is unrestricted within areas of contiguous quarantine,
and irrespective of human-assisted spread, a mated EAB is capable of
flying up to 100 miles in her lifetime, resulting in a high potential
for natural spread.
[[Page 81095]]
EAB's spread through the United States to date suggests it will
become established throughout its entire geographical range
irrespective of Federal regulation, as EAB can overcome significant
natural barriers during a flight season and, as mentioned above,
Federal regulations do not address non-commercial movement of EAB host
material. The possibility that the pest could reach EAB-free States
more quickly in the absence of Federal regulation of host material is
difficult to quantify. For the difference in rates of spread to be
significant, quarantine activities must be able to mitigate all or at
least most pathways for that spread. As noted above, resources
available for quarantine activities have declined while the area under
quarantine continues to expand. Human-assisted introduction may be
mitigated by State regulations, and at least one State has indicated it
will establish its own quarantine program following Federal
deregulation.
Continuing to devote resources to regulatory activities would
constrain APHIS' allocation of resources to activities that could be of
greater long-term benefit in slowing the spread of EAB and helping
affected communities recover from EAB infestation. These activities
include further development and deployment of EAB biological control
organisms; further investigation of integrated pest management of EAB
that can be used at the local level to help safeguard an ash population
of significant importance to a community; and further research, in
tandem with other Federal Agencies, into the phenomenon of ``lingering
ash,'' or ash trees that are still alive and present in the landscape
in areas of otherwise heavy infestation, and integration of the
findings of that research into the EAB program.
Public outreach activities outside the EAB regulatory program will
remain substantially similar or increase following removal of the
domestic quarantine regulations for EAB. We will continue to work with
our State counterparts to encourage the public to buy firewood where
they burn it and to refrain from moving firewood to areas of the United
States that are not under Federal quarantine for pests of firewood. The
primary national communications tool to warn the public about the plant
pest risk associated with the movement of firewood is the Don't Move
Firewood campaign, which is administered by The Nature Conservancy with
support from APHIS and other Federal agencies.
In sum, this rule's elimination of compliance requirements will
yield cost savings for affected entities within EAB quarantined areas.
Moreover, sales volumes for at least some of these operations could
increase if their sales have been constrained because of the Federal
quarantine. Costs avoided will depend on the type of treatment and
whether treatment still occurs for non-quarantine purposes. Costs
ultimately borne also will depend on whether States decide to establish
and enforce their own EAB quarantine programs. We anticipate States
will continue to impose movement restrictions on firewood, with the
regulatory requirements varying from State to State. The National Plant
Board developed a template for State regulation of firewood, as well as
best management practices regarding the commercial movement of firewood
for the purposes of heating a home or building. Internationally, this
rule may affect exports of ash products to Norway and Canada. Longer
term, the impact of the rule on ash populations in natural and urban
environments within and outside currently quarantined areas--and on
businesses that grow, use, or process ash--will depend on how much
sooner EAB is introduced into un-infested areas within the continental
United States than would have occurred under the existing, decreasingly
effective quarantine regulations.
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 rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Does not preempt State and local laws
and regulations; (2) has no retroactive effect; and (3) does not
require administrative proceedings before parties may file suit in
court challenging this rule.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with Tribes on a government-to-government
basis on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
APHIS has assessed the impact of this rule on Native American
Tribes and determined that this rule does have Tribal implications that
require Tribal consultation under Executive Order 13175. APHIS has
engaged in Tribal consultation with Tribes regarding this rule; these
consultations are summarized in the Tribal impact statement that
accompanies this rule.
Paperwork Reduction Act
This rule contains no reporting, recordkeeping, or third-party
disclosure requirements under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
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 action
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we are amending 7 CFR part 301 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 J--[Removed and Reserved]
0
2. Subpart J, consisting of Sec. Sec. 301.53-1 through 301.53-9, is
removed and reserved.
Done in Washington, DC, this 1st day of December 2020.
Michael Watson,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2020-26734 Filed 12-14-20; 8:45 am]
BILLING CODE 3410-34-P
