[Federal Register Volume 81, Number 28 (Thursday, February 11, 2016)]
[Rules and Regulations]
[Pages 7195-7198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02822]



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 Rules and Regulations
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  Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / 
Rules and Regulations  

[[Page 7195]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0106]
RIN 0579-AE10


Importation of Phalaenopsis Spp. Plants for Planting in Approved 
Growing Media From China to the Continental United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation of 
plants for planting to authorize the importation of Phalaenopsis spp. 
plants for planting from China in approved growing media into the 
continental United States, subject to a systems approach. The systems 
approach consists of measures that are currently specified in the 
regulations as generally applicable to all plants for planting 
authorized for importation into the United States in approved growing 
media. This rule allows for the importation of Phalaenopsis spp. plants 
for planting from China in approved growing media, while providing 
protection against the introduction of quarantine plant pests.

DATES: Effective March 14, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Lydia E. Col[oacute]n, PPQ, APHIS, 
4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 851-2302.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of certain plants and plant products into the United States 
to prevent the introduction of quarantine plant pests. The regulations 
contained in ``Subpart--Plants for Planting,'' Sec. Sec.  319.37 
through 319.37-14 (referred to below as the regulations), prohibit or 
restrict, among other things, the importation of living plants, plant 
parts, and seeds for propagation or planting.
    The regulations differentiate between prohibited articles and 
restricted articles. Prohibited articles are plants for planting whose 
importation into the United States is not authorized due to the risk 
the articles present of introducing or disseminating quarantine plant 
pests. Restricted articles are articles authorized for importation into 
the United States, provided that the articles are subject to mitigation 
measures to address such risk.
    Conditions for the importation into the United States of restricted 
articles in growing media are found in Sec.  319.37-8. Within that 
section, the introductory text of paragraph (e) lists taxa of 
restricted articles that may be imported into the United States in 
approved growing media, subject to the provisions of a systems 
approach. Paragraph (e)(1) of Sec.  319.37-8 lists the approved growing 
media, while paragraph (e)(2) contains the provisions of the systems 
approach. Within paragraph (e)(2), paragraphs (i) through (viii) 
contain provisions that are generally applicable to all the taxa listed 
in the introductory text of paragraph (e), while paragraphs (ix) 
through (xii) contain additional, taxon-specific provisions.
    In response to a request from the national plant protection 
organization (NPPO) of China, on June 1, 2015, in a proposed rule \1\ 
published in the Federal Register (80 FR 30959-30961, Docket No. APHIS-
2014-0106), we proposed to amend the introductory text of paragraph (e) 
of Sec.  319.37-8 to add Phalaenopsis spp. plants for planting from 
China to the list of taxa authorized for importation into the United 
States in approved growing media. We also proposed to add a paragraph 
(e)(2)(xii) to Sec.  319.37-8 that would specify that such plants for 
planting may only be imported into the continental United States.
---------------------------------------------------------------------------

    \1\ To view the proposed rule, its supporting documents, or the 
comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0106.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
July 31, 2015. We received eight comments by that date. They were from 
the NPPO of China, two State departments of agriculture, an 
organization representing State departments of agriculture, an 
organization representing horticulture in the State of Hawaii, a plant 
pathologist specializing in Phalaenopsis spp. plants for planting, and 
private citizens.
    One commenter suggested we finalize the rule, as written. The 
remaining commenters had questions and comments regarding the rule and 
its supporting documents. We discuss the comments that we received 
below, by topic.

Comments Regarding the Pest Risk Assessment and Risk Management 
Document

    In response to the NPPO of China's request, we prepared a pest risk 
assessment (PRA), titled ``Importation of Phalaenopsis spp. Orchids in 
Growing Media from China into the Continental United States: A Pathway-
Initiated Risk Assessment,'' to analyze the potential pest risk 
associated with the importation of Phalaenopsis spp. plants for 
planting in approved growing media into the continental United States 
from China. We also prepared a risk management document (RMD), titled 
``Importation of Phalaenopsis spp. Orchids in Approved Growing Media 
from China into the Continental United States,'' to identify the 
phytosanitary measures necessary to ensure the safe importation into 
the continental United States of Phalaenopsis spp. plants for planting 
in approved growing media from China.
    One commenter stated that the PRA did not consider the possibility 
that viral pathogens of Phalaenopsis spp. plants for planting could be 
introduced into the continental United States through the importation 
of Phalaenopsis spp. plants for planting in approved growing media from 
China.
    In developing our PRAs, we first prepare a list of pests of the 
commodity that we have determined to occur in the particular foreign 
region. We then determine whether the pests are quarantine pests, which 
the regulations define as plant pests that are of potential economic 
importance to the United States and not yet present in the United 
States, or present but not widely distributed and being officially 
controlled. If the pests are quarantine pests, we then assess whether 
they

[[Page 7196]]

could be introduced into the United States through the importation of 
the commodity.
    The PRA identified five viral pathogens of Phalaenopsis spp. plants 
for planting that we have determined to occur in China. However, none 
of these pathogens are quarantine pests. Accordingly, we did not assess 
whether they are likely to follow the pathway on Phalaenopsis spp. 
plants for planting in approved growing media from China to the 
continental United States.
    One commenter pointed out that, in the PRA, the list of plant pests 
of Phalaenopsis spp. plants for planting that are known to occur in 
China did not include Dickeya dieffenbachiae, a bacterial pathogen, and 
Colletotrichum karstii, a pathogenic fungus. The commenter stated that 
these pests occur in China and could follow the pathway on Phalaenopsis 
spp. plants for planting in approved growing media from China to the 
continental United States. The commenter concluded that the pests 
therefore should be added to the PRA, and mitigation measures specific 
to the pests should be added to the RMD and rule.
    D. dieffenbachiae and C. karstii were detected in China after the 
PRA and RMD were drafted, and we agree with the commenter that they 
could follow the pathway on Phalaenopsis spp. plants for planting in 
approved growing media from China to the continental United States. 
However, we do not consider it necessary to revise the RMD or rule to 
specify mitigation measures for these pests. We reserve pest-specific 
mitigation measures for quarantine pests. Neither D. dieffenbachiae nor 
C. karstii is a quarantine pest: Both are present in the United States, 
and neither pest is under official control.
    Two commenters pointed out that the PRA identified four quarantine 
pests that could follow the pathway on Phalaenopsis spp. plants for 
planting in approved growing media from China to the continental United 
States: Spodoptera litura, Thrips palmi, Cylindrosporium 
phalaenopsidis, and Lissachatina fulica. The commenters stated that, if 
these pests became established throughout the United States, they could 
result in significant economic losses for domestic producers. For this 
reason, the commenters did not support the proposed rule.
    We agree that, if the quarantine pests identified by the PRA were 
to become established throughout the United States, they could cause 
economic losses for domestic producers. However, for the reasons 
specified in the RMD and the proposed rule itself, if the provisions of 
this rule are adhered to, we have determined that they will mitigate 
the plant pest risk associated with the importation of Phalaenopsis 
spp. plants for planting in approved growing media from China.
    Because we had identified more pests that could follow the pathway 
on orchids from Taiwan to the United States than from China to the 
continental United States, one commenter surmised that we were 
establishing more favorable trading conditions for China than for 
Taiwan regarding the export of orchids to the United States.
    The commenter's assumption is incorrect. There are more quarantine 
pests of Oncidium spp. known to occur in Taiwan that could follow the 
pathway on Oncidium spp. plants for planting in approved growing media 
from Taiwan to the United States than there are of Phalaenopsis spp. 
known to occur in China that could follow the pathway on Phalaenopsis 
spp. plants for planting in approved growing media from China to the 
continental United States.
    Finally, one commenter asked whether we were confident that the PRA 
had identified all the plant pests of Phalaenopsis spp. plants for 
planting in China, given China's size.
    We are confident. In the PRA, we took into consideration China's 
size and relied on multiple sources to identify pests of Phalaenopsis 
spp. plants for planting in China.

Comments Regarding Movement to Hawaii

    One commenter noted that the rule only proposed to authorize the 
importation of Phalaenopsis spp. plants for planting in approved 
growing media from China to the continental United States, and did not 
propose to authorize such importation to Hawaii or the territories of 
the United States. The commenter asked whether, once Phalaenopsis spp. 
plants for planting in approved growing media from China enter the 
continental United States, they subsequently may be shipped to Hawaii 
or the territories. If the rule does not authorize such reshipment, the 
commenter asked how we intended to prevent it from occurring.
    This rule expressly prohibits such reshipment, and we will use 
inspections to prevent it from occurring.

Comments Regarding the Proposed Systems Approach

    We proposed that the Phalaenopsis spp. plants for planting would 
have to be grown in a greenhouse in which sanitary procedures adequate 
to exclude quarantine pests are always employed. We proposed that, at a 
minimum, the greenhouse would have to be free from sand and soil, have 
screenings with openings of not more than 0.6 mm on all vents and 
openings except entryways, have entryways equipped with automatic 
closing doors, regularly clean and disinfect floors, benches, and 
tools, and use only rainwater that has been boiled or pasteurized, 
clean well water, or potable water to water the plants.
    One commenter stated that plant pest population densities can vary 
significantly within a foreign region. The commenter expressed concern 
that sanitary procedures that are adequate to exclude quarantine pests 
from a greenhouse in one region of China may not be adequate to do so 
in another region.
    Growers must employ sanitary procedures that are adequate to 
exclude quarantine pests from the Phalaenopsis spp. plants for planting 
grown at the greenhouse that are intended for export to the United 
States. These sanitary procedures must therefore correspond to the 
quarantine pest risk associated with the area in which the greenhouse 
is located. Accordingly, if the greenhouse is located in an area of 
China with particularly high population densities of a certain 
quarantine pest, the grower may need to employ additional safeguards to 
exclude that pest from affecting plants for planting at the greenhouse. 
The NPPO of China will make this determination regarding whether 
additional safeguards are necessary, and will communicate the 
safeguards needed to the greenhouse in an agreement with the grower. 
The grower must enter into such an agreement with the NPPO in order to 
export Phalaenopsis spp. plants for planting in approved growing media 
to the United States.
    Another commenter expressed concern that screenings with openings 
of 0.6 mm would not preclude T. palmi from entering the greenhouses. 
The commenter cited studies indicating that 40 to 50 percent of T. 
palmi that attempt to pass through such an opening can do so.
    We agree that screenings with openings of 0.6 mm may not preclude 
all T. palmi from entering the greenhouse. However, as we mentioned 
above, in order to comply with the provisions of the systems approach, 
growers will have to employ sanitary procedures that are sufficient to 
exclude quarantine pests from the Phalaenopsis spp. intended for export 
to the United States. Accordingly, growers in areas where T. palmi are 
present will be expected to develop a pest management

[[Page 7197]]

plan for T. palmi to address incursions of this pest into the 
greenhouse; the plan must have sufficient safeguards to prevent 
Phalaenopsis spp. plants for planting intended for export to the United 
States from becoming infested with T. palmi. The agreement that the 
grower enters into with the NPPO of China will specify the additional 
safeguards that the grower will use.
    In the proposed rule, we proposed to add a condition restricting 
the importation of Phalaenopsis spp. from China in approved growing 
media to the continental United States to Sec.  319.37-8 as paragraph 
(e)(2)(xii). In this final rule, it is added as paragraph (e)(2)(xiii).
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
change discussed in this document.

Executive Order 12866 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.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov Web site (see footnote 1 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    APHIS is amending the regulations in 7 CFR 319.37-8(e) to allow the 
importation from China into the continental United States of orchids of 
the genus Phalaenopsis established in an approved growing medium, 
subject to specified growing, inspection, and certification 
requirements.
    Prior to this rule, Phalaenopsis spp. imported from China were 
required to be bare-rooted. Eliminating this requirement is expected to 
increase the number and quality of orchids imported from China by U.S. 
producers, who then finish the plants for the retail market. This 
change could result in cost savings for these U.S. producers, which may 
or may not be passed on to U.S. buyers. The amended regulations could 
also result in the importation of market-ready Phalaenopsis spp. in 
approved growing media from China that would directly compete at 
wholesale and retail levels with U.S. finished potted orchids. The 
latter scenario is considered unlikely, given the technical challenges 
and additional marketing costs incurred when shipping finished plants 
in pots.
    While many of the U.S. entities that will be affected by the rule 
such as orchid producers and importers may be small by Small Business 
Administration standards, we expect economic effects for these entities 
to be modest.

Executive Order 12988

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

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of 
Phalaenopsis spp. plants for planting from China, subject to a required 
systems approach, will not have a significant impact on the quality of 
the human environment. Based on the finding of no significant impact, 
the Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site. Copies of the 
environmental assessment and finding of no significant impact are also 
available for public inspection at USDA, Room 1141, South Building, 
14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. 
and 4:30 p.m., Monday through Friday, except holidays. Persons wishing 
to inspect copies are requested to call ahead on (202) 799-7039 to 
facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule, which were 
filed under 0579-0439, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this final rule, please contact Ms. Kimberly 
Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

List of Subjects in 7 CFR Part 319

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

    Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. Section 319.37-8 is amended as follows:
0
a. In paragraph (e) introductory text, in the entry for ``Phalaenopsis 
spp. from Taiwan'', add the words ``and the People's Republic of 
China'' after the word ``Taiwan''.
0
b. Add paragraph (e)(2)(xiii).
0
c. Revise the OMB citation at the end of the section.
    The addition and revision read as follows:


Sec.  319.37-8  Growing media.

* * * * *
    (e) * * *
    (2) * * *
    (xiii) Plants for planting of Phalaenopsis spp. from the People's 
Republic of China may only be imported into the continental United 
States, and may not be imported or moved into Hawaii or the territories 
of the United States.
* * * * *

[[Page 7198]]

(Approved by the Office of Management and Budget under control 
numbers 0579-0266, 0579-0431, and 0579-0439)

    Done in Washington, DC, this 5th day of February 2015.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-02822 Filed 2-10-16; 8:45 am]
 BILLING CODE 3410-34-P