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.

Rules and Regulations Federal Register

81085 

Vol. 85, No. 241 

Tuesday, December 15, 2020 

1The list of quarantined areas is available at 

https://www.aphis.usda.gov/plant_health/plant_

pest_info/emerald_ash_b/downloads/eab-areasquarantined.pdf. 2That 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. 

3See 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. 

4To view these Federal Orders, go to https://

www.aphis.usda.gov/aphis/ourfocus/planthealth/ 

plant-pest-and-disease-programs/pests-anddiseases/emerald-ash-borer/ct_quarantine. 

5To view the proposed rule, its supporting 

documents, and the comments that we received, go 

to https://www.regulations.gov/docket?D=APHIS2017-0056. 

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. 

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; Herbert.Bolton@

usda.gov.

SUPPLEMENTARY INFORMATION: 

Background 

Emerald ash borer (EAB, Agrilus 

planipennis) is a destructive woodboring 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). 

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

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. 

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. 

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 

81086 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

6See https://www.federalregister.gov/documents/ 

2017/02/03/2017-02451/reducing-regulation-andcontrolling-regulatory-costs. 

7The Federal Order is available at https://

nationalplantboard.org/wp-content/uploads/docs/ 

spro/spro_eab_2012_05_31.pdf. 

8Taylor, 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. 

9Cappaert, David, et al. 2005. Emerald Ash Borer 

in North America: A research and regulatory 

challenge. American Entomologist. 51: 152–165. 

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. 

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. 

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. 

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; 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81087 

10See 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-andsampling-of-emerald-ash-borer-coleopterabuprestidae-infestations/671D5F7160E19CDA09

A4159D4B903A1B. 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. 

11See Haack et al. 

12See https://www.aphis.usda.gov/plant_health/ 

plant_pest_info/emerald_ash_b/downloads/EABFieldRelease-Guidelines.pdf. 

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 

Continued 

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

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

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, 

81088 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

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. 

14For further information regarding the 

Continental Dialogue on Non-Native Forest Insects 

and Diseases, go to https://

continentalforestdialogue.org/. 

15For 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/. 16See 87 FR 47310. 

we also indicated that biocontrol 

activities could be a more viable longterm strategy than regulatory and 

enforcement activities. 

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. 

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 everexpanding 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. 

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-FieldReleaseGuidelines.pdf. There are no current 

plans to revise those parameters as a 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 

81090 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

17See https://www.dontmovefirewood.org/. 

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. 

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 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81091 

18See https://www.aphis.usda.gov/import_

export/plants/plant_imports/firewood/firewood_

pathway_assessment.pdf. 

19Both the template and the recommendations 

are found in this document: https://

nationalplantboard.org/wp-content/uploads/docs/ 

docs_policies/firewood_2020_2.pdf. 

20See https://www.uvm.edu/rsenr/towardspreservation-cultural-keystone-species-assessingfuture-black-ash-following-emerald. 

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 longterm 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. 

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 noncommercial 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

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. 

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 

81092 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

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. 

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

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 cohosting 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 costprohibitive. 

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 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 81093 

22See 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. 

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

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 

81094 Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 

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

Product Treatment Compliance 

agreements 

Treatment costs 

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 

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 humanassisted 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. 

Federal Register / Vol. 85, No. 241 / Tuesday, December 15, 2020 / Rules and Regulations 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 longterm 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 nonquarantine 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 uninfested 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 

■ 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] 

■ 2. Subpart J, consisting of 

§§ 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