[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Rules and Regulations]
[Pages 43155-43157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19519]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 82, No. 177 / Thursday, September 14, 2017 / 
Rules and Regulations  

[[Page 43155]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2015-0091]
RIN 0579-AE24


Importation of Orchids in Growing Media From the Republic of 
Korea Into 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 add orchid plants of the genera Phalaenopsis and 
Cymbidium from the Republic of Korea to the list of plants that may be 
imported into the continental United States in an approved growing 
medium, subject to specified growing, inspection, and certification 
requirements. We are taking this action in response to a request from 
the Republic of Korea and after determining that the plants could be 
imported under certain conditions without resulting in the introduction 
into, or the dissemination within, the United States of a plant pest or 
noxious weed.

DATES: Effective October 16, 2017.

FOR FURTHER INFORMATION CONTACT: Mrs. Rosemarie Rodriguez-Yanes, 
Regulatory Policy Specialist, Plants for Planting Policy, PPQ, APHIS, 
4700 River Road, Unit 133, Riverdale, MD 20737, (301) 851-2313.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation into the United States of certain plants and plant products 
to prevent the introduction of plant pests and noxious weeds. The 
regulations in ``Subpart--Plants for Planting,'' Sec. Sec.  319.37 
through 319.37-14 (referred to below as the regulations) contain, among 
other things, prohibitions and restrictions on the importation of 
plants, plant parts, and seeds for propagation.
    Paragraph (a) of Sec.  319.37-8 of the regulations requires, with 
certain exceptions, that plants offered for importation into the United 
States be free of sand, soil, earth, and other growing media. This 
requirement is intended to help prevent the introduction of plant pests 
that might be present in the growing media; the exceptions to the 
requirement take into account factors that mitigate plant pest risks. 
Those exceptions, which are found in paragraphs (b) through (e) of 
Sec.  319.37-8, consider either the origin of the plants and growing 
media (paragraph (b)), the nature of the growing media (paragraphs (c) 
and (d)), or the use of a combination of growing conditions, approved 
media, inspections, and other requirements (paragraph (e)).
    Paragraph (e) of Sec.  319.37-8 provides conditions under which 
certain plants established in growing media may be imported into the 
United States. In addition to specifying the types of plants that may 
be imported, Sec.  319.37-8(e) also:
     Specifies the types of growing media that may be used;
     Requires plants to be grown in accordance with written 
agreements between the Animal and Plant Health Inspection Service 
(APHIS) and the national plant protection organization (NPPO) of the 
country where the plants are grown and between the foreign NPPO and the 
grower;
     Requires the plants to be rooted and grown in a greenhouse 
that meets certain requirements for pest exclusion and that is used 
only for plants being grown in compliance with Sec.  319.37-8(e);
     Requires that the parent plants of the exported plants in 
growing media are produced from seed germinated in the production 
greenhouse or from mother plants that are grown and monitored for a 
specified period prior to export of the descendant plants;
     Specifies the sources of water that may be used on the 
plants, the height of the benches on which the plants must be grown, 
and the conditions under which the plants must be stored and packaged; 
and
     Requires that the plants be inspected in the greenhouse 
and found free of evidence of plant pests no more than 30 days prior to 
the exportation of the plants.
    A phytosanitary certificate issued by the NPPO of the country in 
which the plants were grown that declares that the above conditions 
have been met must accompany the plants at the time of importation. 
These conditions have been used successfully to mitigate the risk of 
pest introduction associated with the importation into the United 
States of approved plants established in growing media.
    On August 12, 2016, we published in the Federal Register (81 FR 
53334-53336, Docket No. 15-091-1) a proposal \1\ to amend the 
regulations governing the importation of plants for planting to add 
orchid plants of the genera Phalaenopsis and Cymbidium from the 
Republic of Korea to the list of plants that may be imported into the 
continental United States in an approved growing medium, subject to 
specified growing, inspection, and certification requirements. We took 
that action in response to a request from the NPPO of the Republic of 
Korea and after determining that the plants could be imported under 
certain conditions without introducing or disseminating a plant pest or 
noxious weed within the United States.
---------------------------------------------------------------------------

    \1\ To view the proposed rule, pest risk assessment (PRA), risk 
management document (RMD), environmental assessment (EA), finding of 
no significant impact (FONSI), and the comments we received, go to 
https://www.regulations.gov/docket?D=APHIS-2015-0091.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
October 11, 2016. We received five comments by that date, from members 
of the public, a State floriculture council, and a State agriculture 
agency. The comments are discussed below.
    One commenter supported the action but asked if there were 
regulations that provided compensation to stakeholders should the 
proposed safeguards be ineffective and result in losses.
    The regulations do not contain such provisions for the payment of 
compensation.
    One commenter raised concerns regarding the possible introduction 
of Spodoptera litura into a high-risk sentinel State, particularly 
since S. litura has reportedly been intercepted at ports of entry on 
orchids from abroad.

[[Page 43156]]

The commenter stated that the cost to eradicate the pest, or any pest, 
would severely impact the State's agricultural industry. Similarly, 
another commenter asked why we would approve the importation of a plant 
that presents even a medium risk of introducing pests that could 
negatively impact the U.S. floriculture industry.
    We agree that, if the quarantine pests identified by the PRA were 
to be introduced into 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 and Cymbidium 
spp. plants for planting in approved growing media from Korea.
    One commenter noted that the environmental assessment does not 
indicate where in Korea the orchids are produced and whether such areas 
are more densely populated with the associated plant pests. The 
commenter suggested that the pest densities could impact the 
effectiveness of the prescribed sanitation protocols.
    We acknowledge that such densities can vary; however, the 
greenhouses will have to employ phytosanitary procedures that 
correspond to the quarantine pest risk associated with the area in 
which the greenhouse is located and are adequate to address this risk, 
as determined by the NPPO of the Republic of Korea and APHIS.
    One commenter stated that inspection 30 days prior to exportation 
is inadequate to insure the plants are free from plant pests even if 
the plants are inspected and certified as pest-free.
    The orchids produced under this approach will have a higher 
standard of pest freedom at the time of import than similar plants 
produced under the requirements of only removing the growing media. 
Under the requirements of the operational work plan, the exported 
plants are grown with specific mitigation measures that are a condition 
of entry, verified by the NPPO. Only those plants that are grown under 
a higher level of safeguarding may enter as plants in growing media. 
Any visible plant pests at the time of inspection at the port of entry 
will result in the consignment being rejected and prohibited from entry 
into the United States.
    One commenter expressed concern that allowing orchids in growing 
media from Korea would increase competition with U.S. orchid growers 
and force several small business and U.S. orchid markets to close their 
doors. The commenter compared this action to the importation of orchids 
in growing media from Taiwan, which reportedly negatively impacted 
orchid producers in Hawaii. Furthermore, a few commenters suggested 
that APHIS should do more to support the U.S. orchid industry by 
negotiating with foreign governments to simplify and expedite the 
exportation process for U.S.-produced orchids.
    The Taiwan market comparison is inappropriate as there was a large 
established market for Taiwanese orchids prior to the rule that allowed 
the importation of Phalaenopsis spp. orchids from Taiwan, which does 
not exist for the Republic of Korea orchid industry. From 2008 to 2014, 
orchid imports from the Republic of Korea averaged less than 2 percent 
of U.S. orchid imports and did not exceed 4 percent in any one year 
over this time period. Korean producers and exporters must cover their 
production, transportation, and marketing costs given U.S. market 
prices. The U.S. market's competitive environment for orchids will 
limit the quantities of Phalaenopsis and Cymbidium spp. plants in 
approved growing media imported from the Republic of Korea.
    As for the impact of the rule allowing the importation of 
Phalaenopsis spp. orchids in approved growing media from Taiwan, data 
for individual genera of orchids are sparse, but sufficient to 
determine that wholesale prices for orchids of the genus Phalaenopsis 
declined from $8.98 to $8.10 from 1998 to 2009, a decrease of about 10 
percent over 10 years, which allowed consumers to pay less for more 
selection and variety. Additionally, the same small businesses that 
purchased bare root orchids may now purchase established orchids in 
growing media. The option of importing plants in growing media extends 
the ability for small business to take advantage of lowering their 
production costs to provide healthy plants to the public.
    In regards to improving export conditions for U.S. orchid 
producers, we note that importation conditions in a particular country 
are established by the importing country. As exporters, we can request 
that the conditions for importation be more equivalent to those 
required by the United States; however, it is the right of the 
importing country to establish the requirements for importation within 
the scope of international agreements and treaties.
    One commenter stated that they would not support the importation of 
orchids in growing media in general until APHIS implements testing for 
viruses often carried by orchids. The commenter questioned the growing 
practices of Korean orchid producers based on the commenters' 
assumption that Taiwan is exporting infected orchids in growing media 
to the United States due to poor growing practices.
    We agree with the commenter regarding the importance of preventing 
the introduction of viruses associated with these commodities. We 
assess all pests known to be in the country, including viruses, and 
mitigate accordingly. The PRA identified these pests to the best of our 
knowledge and proposed mitigation options for them if required. We do 
not have data to support the commenter's claim that orchids in growing 
media from Taiwan are carrying viruses.
    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 final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget. Further, because this rule is 
not significant, it is not a regulatory action under Executive Order 
13771.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    Orchids are the single largest group of potted flowering plants 
sold in the United States, comprising about $266 million of the $788 
million in 2014 sales for this industry. In 2014, Phalaenopsis spp. 
comprised 57 percent of orchid sales. Although Cymbidium spp. are 
popular in other parts of the world, the quantity of potted Cymbidium 
spp. sold in the United States is small when compared to other 
varieties of orchids.
    The proposed rule would enable Korean exporters to provide higher-
valued, mature potted plants directly to wholesalers and retailers. 
However, such a scenario is considered unlikely, given the technical 
challenges and marketing costs incurred when shipping finished plants 
in pots. A more likely scenario is for the Republic of Korea to export 
immature plants as bare root plants or in approved growing media to 
U.S. nurseries to grow and sell as finished plants.

[[Page 43157]]

    The United States imported more than 6,760 metric tons (MT) of live 
orchids valued at about $83 million in 2014, with Taiwan supplying 
almost 84 percent. The Republic of Korea expects to export to the 
United States from 2 to 5 million Phalaenopsis plants and about 1 
million Cymbidium plants per year in approved growing media. This 
combined number of plants, 3 to 6 million, is estimated to equal more 
than 2,000 MT to 4,000 MT per year. This amount seems disproportionate 
to the Republic of Korea's history of orchid exports worldwide, which 
have declined from 2,936 MT in 2010 to 806 MT in 2014. The Republic of 
Korea exported only 1.3 MT of bare-rooted orchid plants to the United 
States in 2014.
    We expect the quantity of orchids in approved growing media 
imported from the Republic of Korea will also be limited because of the 
U.S. market's competitive environment. Import levels would depend on 
the ability of Korean producers and exporters to cover their 
production, transportation, and marketing costs given U.S. market 
prices. U.S. nurseries that purchased the Korean orchids in approved 
growing media would benefit from their improved quality and reduced 
production time in comparison to bare-rooted plants. The final rule 
would increase competition for U.S. producers and importers of immature 
Phalaenopsis spp. and Cymbidium spp. plants.
    U.S. orchid producers numbered 158 in 2012. Of those producers, it 
is unknown how many are small entities. Given the relatively small 
quantity of orchid plants in approved growing media that we expect to 
be imported from the Republic of Korea, the Administrator of the Animal 
and Plant Health Inspection Service has determined that this action, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities.

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 EA and FONSI have been prepared for the final rule. The EA 
provides a basis for the conclusion that the importation into the 
continental United States of Phalaenopsis spp. and Cymbidium spp. 
orchid varieties in approved growing media from the Republic of Korea, 
subject to a required systems approach, will not have a significant 
impact on the quality of the human environment. Based on the FONSI, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The EA and FONSI 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 EA and FONSI may be viewed on the Regulations.gov Web site (see 
footnote 1). Copies of the EA and FONSI 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 0579-0454, 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 rule, please contact Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

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, by adding a new entry for 
``Cymbidium spp. from the Republic of Korea'' in alphabetical order and 
revising the entry for Phalaenopsis spp.;
0
b. By revising paragraph (e)(2)(xiii); and
0
c. By revising the OMB citation at the end of the section.
    The addition and revisions read as follows:


Sec.  319.37-8   Growing media.

* * * * *
    (e) * * *
    Cymbidium spp. from the Republic of Korea
* * * * *
    Phalaenopsis spp. from Taiwan, the People's Republic of China, and 
the Republic of Korea
* * * * *
    (2) * * *
    (xiii) Plants for planting of Phalaenopsis spp. from the People's 
Republic of China and Phalaenopsis spp. and Cymbidium spp. from the 
Republic of Korea 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.
* * * * *

(Approved by the Office of Management and Budget under control 
numbers 0579-0266, 0579-0431, 0579-0439, and 0579-0454)


    Done in Washington, DC, this 8th day of September 2017.
Michael C. Gregoire,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2017-19519 Filed 9-13-17; 8:45 am]
 BILLING CODE 3410-34-P