[Federal Register Volume 83, Number 182 (Wednesday, September 19, 2018)]
[Proposed Rules]
[Pages 47310-47312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20296]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 182 / Wednesday, September 19, 2018 / 
Proposed Rules  

[[Page 47310]]



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: Proposed rule.

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SUMMARY: We are proposing to remove the domestic quarantine regulations 
for the plant pest emerald ash borer. This action would 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 
would instead be directed to a nonregulatory option of research into, 
and deployment of, biological control agents for emerald ash borer, 
which would serve as the primary tool to mitigate and control the pest.

DATES: We will consider all comments that we receive on or before 
November 19, 2018.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0056.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2017-0056, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2017-
0056 or in our reading room, which is located in Room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW, Washington, DC. 
Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Robyn Rose, National Policy 
Manager, PPQ, APHIS, 4700 River Road Unit 26, Riverdale, MD 20737-1231; 
(301) 851-2283; [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 31 States and the District of Columbia, with additional 
infestations that have not yet been detected likely. The Animal and 
Plant Health Inspection Service (APHIS) instituted a domestic 
quarantine program for EAB that has been in place since 2003.
    The regulations in ``Subpart--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, and 
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 have 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; however, 
developers frequently sourced these trees from nurseries that were 
later determined to be heavily infested with EAB and that were 
subsequently put under quarantine. It was several years after the 
issuance of domestic quarantine regulations before surveys identified 
many long-standing infestations of EAB in residential areas, leading to 
a substantial increase in the number of counties under quarantine.
    Second, the regulations cannot preclude the spread of EAB 
throughout its geographical range, which has expanded over time. In 
recent years, this has led to a significant number of regulatory 
actions to place additional counties under quarantine. In fiscal year 
(FY) 2016 alone, APHIS issued 16 Federal Orders designating additional 
quarantined areas for EAB, and many of these designated multiple 
quarantined areas.
    In light of these difficulties, we propose to remove the domestic 
quarantine regulations for EAB. Funding previously allocated to the 
implementation and enforcement of the regulations would instead be 
directed toward nonregulatory efforts involving research into, and 
release of, biological control (biocontrol) agents. Emphasis in the EAB 
program on the development and deployment of biocontrol agents in this 
way provides a promising approach to mitigate and control infestations 
by focusing directly on the pest and, ultimately, its ability to 
spread.
    The ongoing monitoring of current EAB biocontrol measures shows 
encouraging results in protecting ash regrowth in areas that had been 
previously affected by EAB. For example, a biocontrol agent released in 
urban quarantined areas has shown significant population growth and has 
spread throughout urban communities, demonstrating preliminary evidence 
of the efficacy of biocontrol for EAB in areas that have experienced 
significant tree loss due to infestation. Reallocating funding from 
regulatory to nonregulatory control measures also would facilitate 
achievement of the Agency goal to release and establish biocontrol 
agents in every known EAB-infested county where the agent populations 
can be sustained.
    Accordingly, we are proposing to remove the EAB domestic quarantine 
regulations to more effectively direct available resources toward 
management and containment of the pest.

Executive Orders 12866 and 13771 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the

[[Page 47311]]

Office of Management and Budget. This proposed rule, if finalized as 
proposed, is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the rule's economic analysis.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this proposed 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).
    Based on the information available to APHIS, there is no reason to 
conclude that adoption of this proposed rule would result in any 
significant economic effect on a substantial number of small entities. 
However, we do not currently have all of the data necessary for a 
comprehensive analysis of the effects of this proposed rule on small 
entities. Therefore, we are inviting comments on potential effects. In 
particular, we are interested in determining the number and kind of 
small entities that may incur benefits or costs from the implementation 
of this proposed rule.
    APHIS is proposing to remove the domestic quarantine regulations 
for EAB. This action would discontinue the domestic regulatory 
component of the EAB program. Funding allocated to the implementation 
and enforcement of these quarantine regulations would instead be 
directed to a nonregulatory option of research and deployment of 
biocontrol agents for EAB. Biocontrol would 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 proposal, establishments operating under EAB compliance 
agreements would no longer incur costs of complying with Federal EAB 
quarantine regulations, although States could still impose 
restrictions. Businesses would 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 
proposed rule would depend on the type of treatment and whether 
treatment would still occur 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. 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 stop heat treating ash lumber or logs as a result of 
this rule, the total cost savings for producers could be between about 
$920,000 and $1.6 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 stop heat treating 
firewood as a result of this rule, the total cost savings for producers 
could be between about $99,400 and $746,000 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 stop heat treating as a result of this rule, 
the total cost savings for producers could be between about $8.8 
million and $13.2 million annually. If all 349 establishments with 
compliance agreements where debarking is identified as a treatment stop 
their secondary sorting and 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 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.
    Since no effective quarantine treatments are available for ash 
nursery stock, there are no compliance agreements issued for interstate 
movement of that regulated article. In 2014, there were 316 
establishments selling ash trees, 232 with wholesale sales, operating 
in States that are at least partially quarantined for EAB. Sales 
volumes for at least some of these operations could increase if their 
sales are 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 would recognize any area in the United States 
as EAB free. All exports of ash logs and lumber to Norway would likely 
be subject to debarking and additional material removal requirements. 
From 2013 through 2017, exports to Norway represented less than one-
tenth of 1 percent of U.S. ash exports. We estimate that labor costs 
for overseeing the debarking on these exports would 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. New 
Canadian restrictions would likely depend on the product and its 
destination within Canada. From 2013 through 2017, Canada received 
about 3 percent of U.S. ash lumber exports, and about 9 percent of U.S 
ash log exports. Of about 72,000 phytosanitary certificates (PCs) 
issued from January 2012 through August 2017 for propagative materials 
exported to Canada, a little more than 1 percent was specifically for 
ash products. Although APHIS does not have sufficient data to fully 
evaluate the costs of additional mitigations on all ash materials and 
welcomes public comment to help determine these costs, we estimate that 
additional heat treatment costs and labor costs for overseeing 
debarking of ash lumber and logs exported to Canada would range from 
about $54,000 to $90,700.
    Taking into consideration the expected cost savings shown in table 
A of the full analysis and these estimated costs of exporting ash to 
Norway and Canada following deregulation, and in accordance with 
guidance on complying with E.O. 13771, the single primary estimate of 
the cost savings of this proposed rule is $18.8 million, the mid-

[[Page 47312]]

point estimate annualized in perpetuity using a 7 percent discount 
rate.
    EAB is now found in 31 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 about 27 percent of the native ash 
range within the conterminous United States.
    It is probable that without the EAB program, human-assisted 
dispersal of EAB would have extended to areas that are not yet 
infested, that is, regulatory activities have slowed the spread of EAB, 
delaying losses. However, the volume of regulatory activities needed to 
effectively contain EAB depends on the size of the quarantined area.
    Any delay in EAB spread attributable to the quarantine regulations 
would end with the proposed rule. EAB program emphasis and resources 
would turn to the development and release of biocontrol agents to 
control infestations and mitigate losses. Ongoing monitoring and 
evaluation of EAB biocontrol methods are showing promising results in 
protecting ash regrowth in areas previously affected by EAB. For 
example, a biocontrol agent released in urban quarantined areas has 
spread significantly throughout these communities. Reallocation of 
program funds to biocontrol would support the goal of establishing 
biocontrol agents in every EAB-infested county where control agent 
populations can be sustained. Still, we are unable to evaluate the 
change in EAB risk, by using biocontrol in place of regulatory 
quarantines, for operations not yet affected by this pest. Public 
outreach activities outside the EAB regulatory program would continue, 
such as the ``Don't move firewood'' campaign which focuses on a 
significant pathway for EAB and other forest pests.
    In sum, elimination of compliance requirements under the proposed 
rule would 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 would depend on the type of 
treatment and whether treatment would still occur for non-quarantine 
purposes. Costs ultimately borne also would depend on whether States 
decide to continue to enforce their own EAB quarantine programs. We 
anticipate States will continue to impose movement restrictions on 
firewood and the regulatory requirements vary from State to State. 
Strategies to address firewood as a pathway for forest pests are being 
developed. Internationally, the proposed rule may affect exports of ash 
products to Norway and Canada. Longer term, the impact of the proposed 
rule on ash populations in natural and urban environments within and 
outside currently quarantined areas--and on businesses that grow, use, 
or process ash--is indeterminate.

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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) State and 
local laws and regulations will not be preempted; (2) no retroactive 
effect will be given to this rule; and (3) administrative proceedings 
will not be required 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 Indian tribes and 
determined that this rule does have tribal implications that require 
tribal consultation under E.O. 13175. In January 2018, APHIS State 
Plant Health Directors sent a letter to the leaders of all federally 
recognized Tribes in their States informing them of the agency's intent 
to publish a proposed rule to remove the EAB domestic quarantine and 
inviting tribal members to provide comments. In May 2018, consultations 
were held with the four federally recognized Tribes in Maine; all four 
Tribes expressed concern with the proposed action and requested APHIS 
delay deregulating the EAB until more work can be done to lessen the 
impact of the pest on native ash in the State. We will consider these 
requests, as well as any additional information received during the 
comment period for this proposed rule, as we determine whether or how 
to proceed with this rulemaking. If these or other Tribes request new 
or additional consultation, APHIS will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 301

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

    Accordingly, we propose to amend 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--Emerald Ash Borer [Removed]

0
2. Subpart--Emerald Ash Borer, consisting of Sec. Sec.  301.53-1 
through 301.53-9, is removed.

    Done in Washington, DC, this 12th day of September 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-20296 Filed 9-18-18; 8:45 am]
 BILLING CODE 3410-34-P