[Federal Register Volume 81, Number 23 (Thursday, February 4, 2016)]
[Rules and Regulations]
[Pages 5881-5888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02141]



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Rules and Regulations
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Federal Register / Vol. 81, No. 23 / Thursday, February 4, 2016 / 
Rules and Regulations

[[Page 5881]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0041]
RIN 0579-AE01


Importation of Orchids in Growing Media From Taiwan

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 and plant products to add orchid plants of the genus Oncidium 
from Taiwan to the list of plants that may be imported into the 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 Taiwanese Government 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 quarantine plant pest.

DATES: Effective March 7, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Heather Coady, Regulatory Policy 
Specialist, Plants for Planting Policy, PPQ, APHIS, 4700 River Road 
Unit 133, Riverdale, MD 20737; (301) 851-2076.

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 plant pests. 
Restricted articles are articles authorized for importation into the 
United States, provided that the articles are subject to 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). Paragraphs (i) through 
(viii) collectively:
    <bullet> Require the 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;
    <bullet> Require the plants to be rooted and grown in a greenhouse 
that meets certain requirements for quarantine pest exclusion and that 
is used only for plants being grown in compliance with Sec.  319.37-
8(e);
    <bullet> Restrict the source of the seeds or parent plants used to 
produce the plants, and require grow-out or treatment of parent plants 
imported into the exporting country from another country;
    <bullet> Specify 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
    <bullet> Require that the plants be inspected in the greenhouse and 
found free of evidence of quarantine plant pests no more than 30 days 
prior to the exportation of the plants to the United States.
    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 
quarantine pest introduction associated with the importation into the 
United States of approved plants established in growing media.
    In response to a request from the NPPO of Taiwan, we prepared a 
pest risk analysis (PRA) in order to identify the quarantine plant 
pests that could follow the importation of orchid plants of the genus 
Oncidium in approved growing media from Taiwan into the United States. 
(Under Sec.  319.37-1 of the regulations, a quarantine plant pest is a 
plant pest that is 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.)
    Based on the findings of the PRA, we prepared a risk management 
document (RMD) to determine whether phytosanitary measures exist that 
would address this quarantine plant pest risk. The RMD suggested that 
the risk would be addressed if the plants met the general conditions of 
Sec.  319.37-8(e)(2).
    As a result, on December 3, 2014, we published in the Federal 
Register (79 FR 71703-71705, Docket No. APHIS-2014-0041) a proposal \1\ 
to amend the regulations by adding Oncidium spp. orchids from Taiwan to 
the list of plants for planting in approved growing media that may be 
imported into the United States.
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    \1\ To view the proposed rule, its supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0041.
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    We solicited comments concerning our proposal for 60 days ending 
February 2, 2015. We reopened and extended the deadline for comments 
until March 18, 2015, in a document published in the Federal Register 
on March 12, 2015 (80 FR 12954, Docket No. APHIS-2014-0041). We 
received 50 comments on the proposed rule by that date. They were from 
members of Congress, representatives of State governments, industry 
organizations, and private citizens. Seven comments

[[Page 5882]]

were supportive. Two commenters were generally opposed to the proposal 
but included no detailed objections to the action. The remainder of the 
comments are discussed below by topic.

General Comments

    A number of commenters stated that the specific orchid species that 
fall into the Oncidium genus, and that would therefore be authorized 
for importation from Taiwan under the proposed rule, were not clear. 
They pointed out that the Oncidium genus was recently rearranged based 
on an analysis of the boundaries of that genus. The commenters said 
that we must clarify which orchids are considered to be part of the 
genus Oncidium for purposes of the proposed rule, and that such 
clarification must be reflected in all supporting documents.
    We agree with the commenters that the genus Oncidium has been 
subject to revision, and some taxa previously classified as Oncidium 
spp. have been relocated into different genera. For purposes of this 
rule, Oncidium species are those species currently agreed upon by the 
international taxonomic community to belong to the genus Oncidium, as 
well as interspecies hybrids within that genus. However, since the 
supporting documents that accompanied the proposed rule considered all 
the species that remain in the genus after the revision, as well as 
interspecies hybrids, we do not consider it necessary to revise the 
supporting documents as the commenters requested.
    Several commenters stated that, because bare-rooted Oncidium spp. 
orchids from Taiwan are already authorized for importation into the 
United States, it is not necessary to authorize the importation of 
Oncidium spp. orchids in growing media.
    Under the regulations in 7 CFR 319.5, the NPPO of a foreign country 
may request that APHIS authorize the importation of a plant or plant 
product that is not allowed importation into the United States, and 
APHIS will consider the request if it includes all the categories of 
information specified in Sec.  319.5 for such requests. The NPPO of 
Taiwan made such a request for Oncidium spp. orchids in approved 
growing media.
    Several commenters stated that the rule appears to be the byproduct 
of bilateral negotiations between the United States and Taiwan, and 
that the rule was linked to agreements authorizing the export of 
certain U.S. commodities to Taiwan. Because of this, the commenters 
expressed concern that APHIS did not adequately consider the risk 
associated with the importation of Oncidium spp. orchids from Taiwan in 
growing media. Similarly, other commenters stated that we issued the 
proposed rule solely because large-scale U.S. importers of orchids 
requested it.
    While political and economic interests may stimulate consideration 
of the expansion of trade of agricultural commodities between 
countries, these did not lead us to issue the proposed rule. The United 
States is a member of the World Trade Organization (WTO), and a 
signatory to the WTO's Agreement on Sanitary and Phytosanitary Measures 
(SPS Agreement) and the International Plant Protection Convention 
(IPPC). In these capacities, the United States has agreed that any 
prohibitions it places on the importation of plants for planting will 
be based on scientific evidence, and will not be maintained without 
sufficient scientific evidence indicating that the prohibitions are 
necessary to protect plant life and health within the United States.
    The PRA and RMD that accompanied the proposed rule evaluated the 
quarantine plant risk associated with the importation of Oncidium spp. 
orchids in approved growing media from Taiwan into the United States. 
These documents provided scientific evidence that a prohibition on the 
importation of Oncidium spp. orchids in approved growing media is not 
necessary in order to protect plant life and health in the United 
States, and the risk associated with such importation could be 
addressed by requiring the orchids and growing media to be produced in 
accordance with Sec.  319.37-8(e). This led us to issue the proposed 
rule.
    We prepared the PRA and RMD in accordance with IPPC standards \2\ 
and our own guidelines, and we are confident that they adequately 
evaluated the plant pest risk associated with the importation of 
Oncidium spp. orchids in approved growing media from Taiwan into the 
United States.
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    \2\ For the relevant IPPC standards, see International Standards 
for Phytosanitary Measures (ISPM) No. 11, found at http://www.acfs.go.th/sps/downloads/34163_ISPM_11_E.pdf.
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    One commenter stated that certain life stages of quarantine plant 
pests can be difficult to detect at ports of entry into the United 
States, as can quarantine plant pests with unique feeding habits. For 
this reason, the commenter stated that we should prohibit the 
importation of Oncidium spp. orchids in approved growing media into the 
United States.
    If the provisions of the proposed rule are adhered to, there will 
be a negligible risk that Oncidium spp. orchids in approved growing 
media from Taiwan that are imported into the United States will harbor 
quarantine plant pests.
    That being said, pursuant to Sec. Sec.  319.37-3 and 319.37-11 of 
the regulations, lots of Oncidium spp. orchids in approved growing 
media from Taiwan that consist of 13 or more plants must be imported to 
a United States Department of Agriculture plant inspection station for 
entry into the United States--we anticipate that almost all lots of 
Oncidium spp. orchids in approved growing media from Taiwan that are 
exported to the United States will consist of more than 13 plants. 
Personnel at plant inspection stations are trained to detect plant 
pests and signs and symptoms of plant pests, including those that are 
difficult to detect, and have access to personnel with scientific 
expertise in identifying plant pests.
    One commenter stated that Taiwan cannot be trusted to adhere to the 
provisions of the proposed rule.
    Like the United States, Taiwan is a signatory to the SPS Agreement. 
As such, it has agreed to respect the phytosanitary measures the United 
States imposes on the importation of plants and plant products from 
Taiwan when the United States demonstrates the need to impose these 
measures in order to protect plant health within the United States. The 
PRA that accompanied the proposed rule provided evidence of such a 
need.
    One commenter stated that the NPPO of Taiwan should have to 
demonstrate adherence to the proposed systems approach with small 
shipments of orchids before we allow more widespread export of Oncidium 
spp. orchids from Taiwan under the provisions of the systems approach.
    We do not consider this sort of provisional authorization 
necessary. We authorize the importation of many plants and plant 
products from Taiwan into the United States, and have not encountered 
any issues to suggest the NPPO of Taiwan will not or cannot adhere to 
the requirements of our export programs for such commodities.

Comments Regarding the Pest Risk Analysis

General Comment

    As we mentioned above, we prepared a PRA in support of the proposed 
rule. The purpose of the PRA was to identify the quarantine plant pests 
that could follow the importation of Oncidium spp. orchid plants in 
approved growing media from Taiwan to the United States.
    One commenter pointed out that the PRA was completed in May of 
2012.

[[Page 5883]]

The commenter asked whether there have been any additional quarantine 
pests associated with Oncidium spp. orchids detected in Taiwan since it 
was completed.
    There have not been any such detections.

Comments Regarding the Pest List

    As part of the PRA, we prepared a list of plant pests that are 
associated with Oncidium spp. orchids and that we determined to occur 
in Taiwan.
    One commenter asked why we limited the list to plant pests. The 
commenter asked whether APHIS had considered whether zoonotic diseases 
could follow the pathway on Oncidium spp. orchids in growing media, 
and, more generally, whether APHIS had considered the potential risks 
to human and animal health associated with such importation.
    We limit our PRAs to evaluating plant pest risk; this is consistent 
with our PRA guidelines related to this specific class of plant 
commodity and also with IPPC standards. However, the environmental 
assessment that accompanied the proposed rule evaluated the potential 
environmental consequences associated with authorizing the importation 
of Oncidium spp. orchids in approved growing media. This includes 
potential human or animal health risks.
    Several commenters pointed out that, while some plant pests on the 
list were identified to the species level, others were identified only 
to the genus level. The commenters stated that certain species within a 
genus of plant pests can be significantly more destructive than other 
species within that genus, and asked us to revise the pest list to 
identify all plant pests of Oncidium spp. orchids that we believe to 
occur in Taiwan to the species level.
    The commenters are correct that certain plant pest species within a 
particular genus can be significantly more destructive than other 
species in the same genus. For this reason, as we stated in the PRA, 
the taxonomic level for organisms listed in our PRAs is usually the 
species. This is consistent with both our standards as well as with the 
IPPC standards for PRAs, which suggest that, within PRAs, the identity 
of the organism should be clearly defined to ensure that the assessment 
is being conducted on distinct organisms.\3\
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    \3\ See ISPM No. 11.
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    Accordingly, within the PRA, all plant pests that we determined to 
be associated with Oncidium spp. orchids in growing media and to occur 
in Taiwan were identified to the species level. If we listed the genus 
or family level of the pest in the PRA, this is because a pest in that 
genus or family was intercepted on bare-rooted Oncidium spp. orchids 
from Taiwan, but we could not identify the genus or family as occurring 
in Taiwan or being associated with Oncidium spp. orchids. We included 
entries for these genera and families in the PRA for the sake of 
transparency and completeness, but do not consider further 
classification of the intercepted pests to be necessary.
    One commenter pointed out that our PRA included not only a pest 
list, but also a list of plant pests that have been intercepted on 
bare-rooted Oncidium spp. orchids at ports of entry into the United 
States between 1985 and 2010. The commenter asked why the pest list did 
not include all pests listed on this latter list.
    If the pest list did not include a particular plant pest for which 
we have pest interception records, it was because we could either find 
no evidence that the pest occurs in Taiwan, or could find no additional 
evidence suggesting the pest is associated with Oncidium spp. orchids.
    Several commenters expressed concern that the pest list may be 
incomplete, and that unidentified quarantine pests could be introduced 
into the United States through the importation of Oncidium spp. orchids 
from Taiwan in approved growing media.
    We compiled the pest list in the PRA from multiple sources, 
including information provided by the NPPO of Taiwan, pest detection 
records, and our own review of scientific literature. We are confident 
that the list has identified all quarantine pests associated with 
Oncidium spp. orchids in approved growing media that occur in Taiwan.
    A commenter expressed concern that, if quarantine pests of Oncidium 
spp. orchids that were not listed in the PRA are subsequently detected 
in Taiwan, the systems approach in the proposed rule may not contain 
measures that mitigate these plant pest risks.
    If this occurs, we will take appropriate measures to address such 
risk. This could include additional restrictions on the importation of 
Oncidium spp. orchids in growing media from Taiwan and/or suspension of 
the export program for Oncidium spp. orchids in growing media from 
Taiwan until APHIS and the NPPO of Taiwan jointly agree that the risk 
has been addressed.
    One commenter pointed out that no nematodes were included in the 
pest list. The commenter asked us to explain their omission.
    As we mentioned above, the list was of plant pests that are 
associated with Oncidium spp. and that we determined to occur in 
Taiwan. There are no species of nematodes that meet these two criteria.
    A commenter pointed out that the pest list had only included one 
species of Fusarium (a genus of pathogenic fungi), Fusarium oxysporum. 
The commenter stated that APHIS had previously indicated that multiple 
species of Fusarium occur in Taiwan, but that we lack diagnostic tools 
to identify all of these species conclusively. The commenter questioned 
this discrepancy.
    At this time, we are aware that multiple species of Fusarium occur 
in Taiwan. However, only one of these Fusarium species--F. oxysporum--
is known to be associated with Oncidium spp. orchids.
    The same commenter stated that we had also previously indicated 
that we take no action at ports of entry to the United States on 
commodities determined to be affected with Fusarium spp., and 
questioned this policy.
    Under the Plant Protection Act (PPA, 7 U.S.C. 7711 et seq.), with 
limited exceptions, we may apply remedial measures to plants or plant 
products that are in the process of being imported into the United 
States only in order to prevent the dissemination of a plant pest that 
is new or not known to be widely prevalent or distributed within and 
throughout the United States. When we have detected Fusarium spp. on 
commodities at ports of entry into the United States, the species 
detected have been ones that are widely prevalent within the United 
States.
    One commenter pointed out that the PRA stated that we have 
intercepted springtails of the family Sminthuridae on bare-rooted 
Oncidium spp. orchids from Taiwan. The commenter asked whether we had 
intercepted Sminthurus viridis, the Lucerne earth flea. If so, the 
commenter suggested that we should add S. viridis to the pest list.
    We have not intercepted S. viridis. Moreover, there is no evidence 
that S. viridis exists in Taiwan or is associated with Oncidium spp. 
orchids.
    Several commenters pointed out that biting midges (Ceratopoginidae 
=Culicoides spp., Forcipomyia spp.) were not included on the pest list 
in the PRA. The commenters stated that biting midges occur in Taiwan, 
and could be imported in sphagnum moss, which is listed in Sec.  
319.37-8 as an approved growing medium. The commenters stated that 
midges can vector arboviruses, filarial worms, other

[[Page 5884]]

parasites, and, while prevalent in the United States, are not 
established throughout their geographical range. The commenters stated 
that immature midges could enter greenhouses where Oncidium spp. 
orchids intended for export to the United States are produced and 
develop in sphagnum moss, and would be able to survive transit from 
Taiwan to the United States in moist sphagnum. The commenters asked 
that the pest list be revised to include biting midges, and biting 
midge-specific mitigations be added to the systems approach of the 
proposed rule.
    We disagree that sphagnum moss is a hospitable host for biting 
midges, and that biting midges are likely to follow the pathway on such 
moss when it is used as a growing medium for plants for planting. We 
approved the use of sphagnum moss as a growing medium for plants for 
planting in 1980 (45 FR 31572-31597). Given the worldwide prevalence of 
biting midges, we would expect to have detected biting midges during 
port-of-entry inspections of orchids and other plants for planting in 
sphagnum moss by this time. We have had no such detections.
    Additionally, we note that there is no evidence that biting midges 
are plant pests.
    Similarly, a commenter stated that sphagnum moss and organic 
fibers, which are also listed as an approved growing medium, can harbor 
nematodes and species of fire ants of quarantine significance, and that 
these pests could therefore follow the pathway on Oncidium spp. orchids 
imported from Taiwan in such material and become established in the 
United States. The same commenter also stated that sphagnum moss can 
harbor microorganisms that cause significant disease in plants. The 
commenter asked us to revise the pest list accordingly.
    We have no evidence that sphagnum moss or organic fibers are a 
pathway for the pests mentioned by the commenter, nor did the commenter 
supply any such evidence. Since sphagnum moss and organic fibers were 
approved as growing media for plants for planting in 1980, there have 
been no detections of quarantine plant pests on these growing media 
that would suggest these growing media are a pathway for the 
introduction of quarantine plant pests.
    Several commenters stated that many quarantine plant pests that are 
not associated with Oncidium spp. orchids are associated with bark, 
which is often used as a growing medium for Oncidium spp. orchids, and 
the pest list should be revised to take this into consideration.
    Bark is not listed in Sec.  319.37-8 as an approved growing medium.
    Finally, several commenters stated that we should revise the pest 
list to indicate that several of the plant pests listed, while not 
quarantine plant pests, are not known to occur in Hawaii.
    This practice would be inconsistent with IPPC standards for PRAs, 
which suggest that pests should be classified based on whether or not 
they are quarantine pests.\4\ It would also be inconsistent with our 
own PRA guidelines and regulatory practices.
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    \4\ See ISPM No. 11.
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Comments Regarding the List of Quarantine Pests

    Based on the pest list, the PRA identified 14 quarantine pests as 
occurring in Taiwan and potentially following the pathway on Oncidium 
spp. orchids in approved growing media:
    <bullet> Tetranychus kanzawai Kishida, a spider mite.
    <bullet> Amsacta lactinea Cramer, a tiger moth.
    <bullet> Spodoptera litura (Fabricius), the Oriental leafworm moth.
    <bullet> Scirtothrips dorsalis Hood, the chili thrips.
    <bullet> Thrips palmi Karny, the melon thrips.
    <bullet> Lissachatina fulica (Bowdich), a snail.
    <bullet> Deroceras laeve (Muller), the marsh slug.
    <bullet> Parmarion martensi Simroth, a semislug.
    <bullet> Petalochlamys vesta (Pfeiffer), a snail.
    <bullet> Meghimatium bilineatus (Benson), a slug.
    <bullet> Meghimatium pictum Stoliczka, a slug.
    <bullet> Laevicaulis alte (F[eacute]russac), the tropical 
leatherleaf.
    <bullet> Pectobacterium cypripedii (Hori) Brenner et al., a 
bacterial leaf-disease of orchids.
    <bullet> Bipolaris zizaniae (Y. Nisik.) Shoemaker, a fungus.
    One commenter stated that L. fulica is a high-risk pest, and could 
cause significant damage to domestic agriculture if it became 
established throughout the United States. The commenter opined we 
should therefore not authorize the importation of Oncidium spp. orchids 
in approved growing media because of this plant pest risk.
    We agree that L. fulica is a high risk pest. However, if the 
provisions of the proposed rule are adhered to, there is a negligible 
risk that L. fulica will be introduced into the United States through 
the importation of Oncidium spp. orchids in approved growing media from 
Taiwan.
    One commenter stated that several of the pests that were listed on 
the pest list, but not identified as quarantine pests, are known to 
occur in Hawaii. The commenter pointed out that APHIS' regulations in 7 
CFR 318.13-1 impose a general prohibition on the interstate movement of 
plants for planting from Hawaii in order to prevent the introduction or 
further dissemination of plant pests within the United States. The 
commenter further pointed out that Sec.  318.13-1 refers to this 
prohibition as a quarantine. The commenter concluded that, because of 
this quarantine, all plant pests of Oncidium spp. orchids that occur in 
Hawaii are quarantine pests. The commenter asked us to reevaluate the 
pest list in light of this consideration, and to revise the list of 
quarantine pests of Oncidium spp. orchids that occur in Taiwan and 
potentially could follow the pathway on Oncidium spp. orchids in 
approved growing media accordingly.
    While we agree with the commenter that Sec.  318.13-1 imposes a 
general quarantine on the interstate movement of plants for planting 
from Hawaii, including the interstate movement of Oncidium spp. 
orchids, we disagree that this means that all plant pests of Oncidium 
spp. orchids that occur in Hawaii are therefore quarantine plant pests. 
As we mentioned above, in order to meet our definition of a quarantine 
plant pest, a plant pest that is present in the United States must not 
be widely distributed and must be officially controlled. The general 
quarantine in Sec.  318.13-1 does not constitute an official control 
program of all plant pests that occur in Hawaii.

Comments Regarding the Analysis of Quarantine Pests

    The PRA also analyzed the likelihood that each of the 14 quarantine 
pests listed above would be introduced into the United States through 
the importation of Oncidium spp. orchids in approved growing media from 
Taiwan, as well as the consequences of such introduction.
    One commenter stated that the PRA should be revised to evaluate the 
likelihood that snails and slugs in the families of Achatinidae, 
Succineidae, Philomycidae, Subulinidae, Veronicellidae, Camanidae, 
Helicarionidae, and Ariophantidae that occur in Taiwan will follow the 
pathway on Oncidium spp. orchids in approved growing media into the 
United States, as well as the consequences of such introduction.

[[Page 5885]]

    The PRA contained an evaluation of the likelihood that quarantine 
snails and slugs that occur in Taiwan and are associated with Oncidium 
spp. orchids will follow the pathway on Oncidium spp. orchids in 
approved growing media to the United States. If the snails or slugs 
were considered to potentially follow the pathway, the PRA evaluated 
the likelihood of their introduction into the United States through 
this pathway, and the consequences of this introduction. However, 
evaluating the likelihood and consequences of the introduction into the 
United States of snails and slugs that occur in Taiwan and are 
associated with Oncidium spp. orchids, but are not of quarantine 
significance, is inconsistent with IPPC standards, as well as our own 
PRA guidelines. Moreover, evaluating the likelihood and consequences of 
introduction of quarantine snails and slugs that occur in Taiwan but 
are not associated with Oncidium spp.orchids is unnecessary. Such 
snails and slugs will not follow the pathway on Oncidium spp. orchids 
in approved growing media to the United States.
    Several commenters stated that the PRA should have evaluated the 
likelihood of introduction and establishment in Hawaii of all plant 
pests on the pest list that could potentially follow the pathway on 
Oncidium spp. orchids and are not known to occur in Hawaii, regardless 
of whether the plant pests are of quarantine significance.
    The PRA evaluated the likelihood of introduction and establishment 
in Hawaii of all quarantine plant pests that could potentially follow 
the pathway on Oncidium spp. orchids in approved growing media to the 
United States, as well as the consequences of such establishment. 
Evaluating the likelihood and consequences of establishment in Hawaii 
of plant pests that could potentially follow the pathway on Oncidium 
spp. into the United States but are not quarantine plant pests is 
inconsistent with IPPC standards, as well as our own PRA guidelines.
    One commenter assumed that it was incumbent on the State of Hawaii 
to conduct an evaluation of the likelihood and consequences of 
establishment in Hawaii of plant pests that could potentially follow 
the pathway on Oncidium spp. into the United States but are not 
quarantine plant pests, but stated that, if the State were to conduct 
such an evaluation and identify potentially significant adverse 
consequences, the State had no recourse under the PPA to request 
Federal restrictions on the movement of Oncidium spp. orchids in 
approved growing media from Taiwan into Hawaii.
    We disagree with the commenter. Pursuant to section 7711 of the 
PPA, APHIS has established the Federally Recognized State Managed 
Phytosanitary Program (FRSMP). Under the program, States may petition 
APHIS to recognize State-managed phytosanitary programs that are 
developed to eradicate, exclude, or contain plant pests that are of 
limited distribution within that State and that APHIS does not consider 
to be of quarantine significance.\5\ If APHIS grants a State's FRSMP 
petition, when we determine that an article imported into the United 
States is infested with a FRSMP pest and destined for the State that 
submitted the petition, we will take appropriate remedial measures to 
address this plant pest risk.
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    \5\ Criteria for a FRSMP petition are located here: https://www.aphis.usda.gov/plant_health/plant_pest_info/frsmp/downloads/petition_guidelines.pdf.
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    Finally, a commenter who co-authored an article \6\ referred to in 
this section of the PRA stated that we had cited the article in an 
erroneous manner. Whereas we suggested that the article indicates that 
approved growing media are not a conducive host for snails, the 
commenter stated that Hollingsworth and Sewake only evaluated the 
growing media in and of themselves, and not when they are used in 
association with plants for planting. The commenter stated that 
Hollingsworth and Sewake in fact included evidence suggesting that 
snail eggs can remain viable on coir, which is listed in Sec.  319.37-8 
as an approved growing medium, when the coir is used as a growing 
medium for orchids.
---------------------------------------------------------------------------

    \6\ Hollingsworth, R.G., and K.T. Sewake. 2002. The Orchid Snail 
as a Pest of Orchids in Hawaii. Cooperative Extension Service, 
College of Tropical Agriculture and Human Resources, University of 
Hawaii at Manoa. Referred to in this preamble as Hollingsworth and 
Sewake.
---------------------------------------------------------------------------

    We agree that we should not have cited the article as evidence that 
approved growing media are not a conducive host for snails. We also 
agree that Hollingsworth and Sewake provides evidence that snail eggs 
can remain viable on coir, when coir is used as a growing medium for 
orchids. For these reasons, we will not cite the article in future PRAs 
as evidence that approved growing media are not a conducive host for 
snails.
    However, Hollingsworth and Sewake did not evaluate growing media 
used in connection with the importation of plants for planting in 
accordance with Sec.  319.37-8(e), but rather growing media that are 
either located in the natural environment of Hawaii or commercially 
produced in Hawaii and available to Hawaiian producers. There is no 
evidence that growing media used in connection with the importation of 
plants for planting in accordance with Sec.  319.37-8(e) is a conducive 
host for snail eggs, or that immature snails could follow the pathway 
on approved growing media imported to the United States in accordance 
with Sec.  319.37-8(e).

Comments Regarding the Proposed Systems Approach

    We proposed that the Oncidium spp. orchids 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 with potable water to water the plants.
    One 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, in order to comply 
with the provisions of the systems approach, growers will have to 
employ sanitary procedures that are jointly sufficient to exclude 
quarantine pests from the Oncidium spp. orchids intended for export to 
the United States. Accordingly, growers in areas where T. palmi are 
present will be expected to develop a pest management plan for T. palmi 
to address incursions of this pest into the greenhouse; the plan must 
have sufficient safeguards to prevent Oncidium spp. orchids intended 
for export to the United States from becoming infested with T. palmi.
    One commenter assumed that certain growers would have to implement 
such pest management plans in order for their greenhouses to always 
employ sanitary procedures adequate to exclude quarantine pests from 
the Oncidium spp. orchids grown in the greenhouses. However, the 
commenter expressed concern that growers may not be able to implement 
or maintain mitigations specified in the plans, or may not be able to 
identify equivalent mitigations if

[[Page 5886]]

the initial mitigations prove insufficient, without guidance or 
oversight from individuals with phytosanitary training.
    Under paragraph (e)(2) of Sec.  319.37-8, the NPPO of Taiwan must 
enter into an agreement with APHIS to enforce the export program for 
Oncidium spp. orchids in approved growing media to the United States, 
and each grower who wishes to export Oncidium spp. orchids must enter 
into an agreement with the NPPO of Taiwan. In this latter agreement, 
the NPPO of Taiwan will specify how the producer may meet the 
requirements of Sec.  319.37-8, and will require the grower to agree to 
allow the NPPO of Taiwan access to greenhouses at any time to monitor 
compliance with the agreement and the provisions of Sec.  319.37-8. 
Because of these requirements, growers will have the oversight and 
guidance of the NPPO of Taiwan to assess the efficacy of their pest 
management plans.
    One commenter stated that APHIS should conduct monitoring of the 
development and implementation of these pest management plans, in 
addition to the NPPO of Taiwan.
    We reserve the right to conduct such monitoring. Additionally, as 
we discuss below, APHIS inspectors may inspect the orchids prior to 
export. However, we do not consider it necessary for us to require 
APHIS to monitor the development and implementation of each pest 
management plan. For other export programs for plants and plant 
products from Taiwan to the United States, we have exercised joint 
monitoring responsibilities with the NPPO of Taiwan, and we have not 
encountered any issues that suggest we should modify this practice.
    Several commenters surmised that most pest management plans would 
include the application of pesticides. They stated that Taiwan 
authorizes the use of pesticides that are prohibited for use within the 
United States, and that are significantly more potent than pesticides 
used within the United States. The commenters expressed concern that 
certain quarantine plant pests of Oncidium spp. orchids that occur in 
Taiwan may have developed tolerances to U.S. pesticides.
    The commenter assumes that quarantine plant pests will be 
introduced into the United States through the importation of Oncidium 
spp. orchids in approved growing media from Taiwan. As we stated 
previously in this document, if the provisions of the systems approach 
are adhered to, there is a negligible risk that this will occur.
    Additionally, we have no evidence that any of the quarantine plant 
pests of Oncidium spp. that are known to occur in Taiwan and may follow 
the pathway on Oncidium spp. orchids in approved growing media to the 
United States are resistant to U.S. pesticides.
    We proposed that the orchids would have to be inspected in the 
greenhouse and found free from evidence of quarantine pests by an APHIS 
inspector or an inspector of the NPPO of Taiwan no more than 30 days 
prior to the date of export to the United States.
    Several commenters stated that visual inspections, in and of 
themselves, are not sufficient to address the quarantine plant pest 
risk associated with the importation of Oncidium spp. orchids from 
Taiwan.
    We agree. This is why we proposed to require the orchids to be 
produced in accordance with the systems approach of Sec.  319.37-8(e).
    Several commenters stated visual inspections are not always able to 
detect signs of bacterial or viral infection. The commenters suggested 
that the orchids should have to be tested for bacterial and viral 
pathogens prior to export to the United States.
    We do not consider viral testing to be necessary. The PRA did not 
identify any quarantine viruses that occur in Taiwan and are associated 
with Oncidium spp. orchids.
    Although we did identify one quarantine bacterium, P. cypripedii, 
to exist in Taiwan and potentially follow the pathway on Oncidium spp. 
orchids to the United States, inspection is not the sole mitigation for 
P. cypripedii within the systems approach. We also require the orchids 
to be grown on benches raised at least 46 centimeters off the ground; 
to be watered only with rainwater that has been boiled or pasteurized, 
with clean well water, or with potable water; to be rooted and grown in 
approved media; and to be grown in greenhouses that are free from sand 
and soil. Because P. cypripedii is primarily spread through compost or 
soil admixed with plant debris, as well as water contaminated with 
soil, these mitigations are jointly sufficient to preclude P. 
cypripedii from being introduced to the orchids, and we do not consider 
testing for P. cypripedii to be necessary.
    One commenter pointed out that the RMD that accompanied the 
proposed rule appeared to require growers to employ bactericides for 
Oncidium spp. orchids that are determined to be infected with P. 
cypripedii. The commenter stated that bactericides are not effective 
mitigations for plants that are visibly infected with P. cypripedii. 
The commenter suggested that plants at a greenhouse that are visibly 
infected with P. cypripedii should be removed from the greenhouse and 
destroyed.
    We agree with the commenter. In the event that Oncidium spp. 
orchids infected with P. cypripedii are detected at the greenhouse, 
these plants must be removed from the greenhouse and destroyed. We 
note, however, that we consider it unlikely that Oncidium spp. orchids 
at these greenhouses will become infected with P. cypripedii, for the 
reasons specified immediately above.
    As we mentioned earlier in this document, we noted that lots of 13 
or more Oncidium spp. orchids in approved growing media from Taiwan 
would have to be imported to a U.S. Department of Agriculture (USDA) 
plant inspection station for entry into the United States.
    Several commenters asked that we explain the inspection protocol at 
plant inspection stations.
    At least 2 percent of the plants in each consignment of Oncidium 
spp. orchids in growing media will be inspected for plant pests, as 
well as signs and symptoms of such pests. Inspecting 2 percent of the 
plants will detect plant pest infestation in 5 percent of the lot with 
95 percent confidence. We note, moreover, that we may set a higher 
inspection rate, as warranted.
    If there are any pests detected, or any signs or symptoms of pests, 
inspectors at the stations will have recourse to pest identifiers and 
diagnostic testing to positively identify the pests. APHIS will take 
appropriate remedial measures if any consignments are determined to be 
infested with quarantine pests.
    Finally, one commenter stated that the provisions of the proposed 
rule did not comply with the intent of Executive Order 13112, which 
instructs Federal agencies not to carry out actions that the agencies 
believe are likely to result in the introduction of invasive species.
    The commenter's stated assumptions were that the provisions of the 
rule would not mitigate for T. palmi, that quarantine viral pathogens 
would follow the pathway on Oncidium spp. orchids in approved growing 
media from Taiwan, and that visual inspection would be the sole 
mitigation for the quarantine pests identified by the PRA as 
potentially following the pathway on Oncidium spp. orchids in approved 
growing media from Taiwan.
    For the reasons discussed previously in this document, we regard 
these assumptions to be incorrect.

Comments Regarding Phalaenopsis Spp. Orchids

    A number of commenters drew parallels between this proposed rule

[[Page 5887]]

and a previous rule (69 FR 24916-24936, Docket No. 98-038-5) that 
authorized the importation of Phalaenopsis spp. orchids in approved 
growing media from Taiwan. The commenters stated that, for that rule, 
APHIS had grossly underestimated the number of Phalaenopsis spp. 
orchids in approved growing media that would be imported into the 
United States annually. Several of the commenters stated that the 
volume of imports had overwhelmed APHIS' capacity to inspect the 
Phalaenopsis spp. orchid shipments. Several of the commenters also 
stated that a disproportionate amount of the Phalaenopsis spp. orchids 
in approved growing media exported to the United States have been 
infested with quarantine plant pests, including a number of quarantine 
plant pests that we had not considered likely to follow the pathway on 
Phalaenopsis spp. orchids to the United States. Similarly, several 
commenters stated that the importation of Phalaenopsis spp. orchids in 
growing media had resulted in the introduction of plant pests into the 
United States. Given these considerations, the commenters stated that 
the systems approach in Sec.  319.37-8 appears to be ineffective for 
orchids from Taiwan, and inquired on what basis we assumed that the 
number of Oncidium spp. orchids from Taiwan in approved growing media 
imported annually to the United States would be significantly fewer 
than the number of Phalaenopsis spp. orchids from Taiwan imported 
annually; on what basis we assumed that we have sufficient resources to 
inspect shipments of Oncidium spp. orchids in approved growing media at 
plant inspection stations; and on what basis we concluded that the 
importation of Oncidium spp. orchids in approved growing media from 
Taiwan into the United States would not result in the introduction of 
plant pests into the United States.
    We consider the export market for Phalaenopsis spp. orchids from 
Taiwan to be significantly different from the export market for 
Oncidium spp. orchids from Taiwan. For the latter genus, Taiwan has a 
large and established market in Japan, and would have to divert a 
significant amount of their current exports from Japan to the United 
States for the number of Oncidium spp. orchids in approved growing 
media exported to the United States annually to be commensurate with 
the number of Phalaenopsis spp. orchids exported to the United States 
annually. We do not consider such diversion likely, and discuss the 
matter at greater length in the economic analysis that accompanies this 
final rule.
    We disagree with the commenters who stated that we have lacked 
sufficient resources to inspect Phalaenopsis spp. orchids in approved 
growing media from Taiwan. Since we authorized their importation into 
the United States, we have inspected all shipments of Phalaenopsis spp. 
orchids in approved growing media in accordance with the inspection 
protocol discussed earlier in this document. Accordingly, even if 
import levels of Oncidium spp. in approved growing media from Taiwan 
were to be equivalent to those of Phalaenopsis spp. in approved growing 
media--a scenario that, again, we regard to be unlikely--we would have 
sufficient resources to inspect all consignments of Oncidium spp. in 
approved growing media exported to the United States.
    We also disagree with the commenters who stated that the number of 
Phalaenopsis spp. orchids in approved growing media that have been 
determined to be infested with quarantine pests has been 
disproportionately high. Since we authorized the importation of 
Phalaenopsis spp. orchids in approved growing media from Taiwan, an 
average of 23 consignments have been determined to be infested 
annually. Insofar as an estimated 20 million Phalaenopsis spp. orchids 
in approved growing media are exported from Taiwan to the United States 
each year, we do not consider this number to be statistically 
significant or disproportionate, or to provide a basis for questioning 
the efficacy of the systems approach in Sec.  319.37-8 with regard to 
the importation of orchids from Taiwan.
    Finally, we have no evidence that any plant pests have been 
introduced into the United States through the importation of 
Phalaenopsis spp. orchids in growing media from Taiwan.
    One commenter stated that a 2007 survey of Phalaenopsis growers in 
Taiwan found that more than 50 percent had orchids that were determined 
to be infected with viral or bacterial pathogens. The commenter asked 
us why we considered Oncidium spp. orchids produced for the export 
program to the United States to be unlikely to become infected with 
bacterial or viral plant pathogens.
    We have confidence that the list of viral and bacterial pathogens 
of Oncidium spp. orchids in the PRA is complete, and thus that we have 
correctly identified the likelihood that Oncidium spp. orchids from 
Taiwan could become infected with viral or bacterial plant pests. If 
the conclusions of our PRA are accurate, then the provisions of the 
proposed rule, which were based on these conclusions, adequately 
address the viral and bacterial plant pest risk associated with the 
importation into the United States of Oncidium spp. orchids in approved 
growing media from Taiwan.
    We do not consider the survey referenced by the commenter to call 
into question the accuracy of our PRA; only Phalaenopsis spp. orchid 
growers in Taiwan were surveyed. Nor do we consider it to call into 
question the efficacy of the systems approach in Sec.  319.37-8(e). The 
survey appears to have surveyed all Phalaenopsis spp. orchid growers in 
Taiwan, and not merely those associated with the export program for 
Phalaenopsis spp. orchids in approved growing media to the United 
States.
    Finally, one commenter requested that ``all of the pleadings and 
comments from the 2007 HOGA (Hawai'i Orchid Growers Association) versus 
USDA legal challenge on the importation of Taiwan Phalaenopsis'' be 
included in the administrative record for the proposed rule.
    In the lawsuit referenced by the commenter, which was commenced in 
2005, HOGA challenged actions related to our consultation with the U.S. 
Fish and Wildlife Service (FWS) under the Endangered Species Act (16 
U.S.C. 1531 et seq.) regarding our 2004 final rule authorizing the 
importation of Phalaenopsis spp. orchids in approved growing media from 
Taiwan into the United States. The U.S. District Court for the District 
of Columbia granted summary judgment in favor of USDA and FWS, and 
dismissed the HOGA case in 2006. That decision was affirmed by the U.S. 
Circuit Court of Appeals for the District of Columbia Circuit in 2007.
    The pleadings and comments from the HOGA lawsuit predate, and do 
not address, the proposed rule regarding the importation into the 
United States of Oncidium spp. orchids in approved growing media from 
Taiwan. Moreover, it is premature and unnecessary to determine the 
scope of the documents that should be included in an administrative 
record for this rule that may be compiled in the future.

Comments Regarding the Economic Analysis and Environmental Assessment

    In support of the proposed rule, we prepared an initial economic 
analysis and draft environmental assessment. We received several 
comments regarding both documents. These are discussed in

[[Page 5888]]

the final economic analysis and environmental assessment that accompany 
this rule.

Miscellaneous

    In preparing this final rule, we noticed an error in Sec.  319.7-4, 
which contains general conditions regarding the withdrawal, 
cancellation, and revocation of various permits for plants and plant 
products.
    Paragraph (b) of that section deals with cancellation of a permit 
that has been issued to a permittee, at the permittee's request. 
However, the section had erroneously stated that, upon receipt of such 
a request, APHIS will withdraw the individual's application, rather 
than cancel his or her permit. We have corrected this error.
    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 
changes 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 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 
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), which 
restrict the importation of orchids of the genus Oncidium to those 
plants that are free of sand, soil, earth, and other growing media. 
This rule amends the regulations to include Oncidium spp. from Taiwan 
on the list of plants that may enter the United States established in 
approved growing media, subject to specified growing, inspection, and 
certification requirements.
    Eliminating the requirement that Oncidium spp. from Taiwan must be 
bare-rooted is expected to increase the number and quality of these 
plants imported by U.S. growers, who then finish the plants for the 
retail market. It is also expected to reduce the production time for 
growers. However, gains due to improved product quality and reduced 
production time are likely to lead to compensating price adjustments, 
assuming a competitive market.
    Oncidium spp. represent an unknown but small portion of the orchid 
market and orchid trade. While many of the entities that may be 
affected by the final rule, such as importers of orchids for the potted 
plant market, are small by Small Business Administration (SBA) 
standards, we expect any impact to be minimal, given Oncidium spp. 
having a small share of the U.S. orchid market and a small share of 
total orchid imports from Taiwan. Allowing importation of Oncidium spp. 
from Taiwan in growing media could also lead to an expanded market for 
this genus. The variety's range of unusual appearances appeals to 
collectors and other niche markets, but could also result in mass 
market demand.
    Under these circumstances, the Administrator has determined that 
this action 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 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 into the 
United States of Oncidium spp. orchids in approved growing media from 
Taiwan, subject to a required systems approach, will not have a 
significant impact on the quality of the human environment in the 
United States. 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

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

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.


Sec.  319.7-4  [Amended]

0
2. In Sec.  319.7-4, in paragraph (b), the words ``withdrawal of the 
application'' are removed, and the words ``cancellation of the permit'' 
are added in their place.


Sec.  319.37-8  [Amended]

0
3. Section 319.37-8 (e), introductory text, is amended as follows:
0
a. By adding, in alphabetical order, an entry for ``Oncidium spp. from 
Taiwan''.
0
b. In footnotes 9 and 10, by removing the words ``footnote 9'' and 
adding the words ``footnote 8'' in their place.

    Done in Washington, DC, this 29th day of January 2016.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-02141 Filed 2-3-16; 8:45 am]
 BILLING CODE 3410-34-P