[Federal Register: January 16, 2004 (Volume 69, Number 11)]
[Rules and Regulations]
[Page 2481-2491]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja04-1]
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Rules and Regulations
Federal Register
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[[Page 2481]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 98-103-5]
Importation of Artificially Dwarfed Plants in Growing Media from
the People's Republic of China
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 artificially dwarfed (penjing) plants
of the species Buxus sinica, Ehretia microphylla, Podocarpus
macrophyllus, Sageretia thea, and Serissa foetida from the People's
Republic of China to the list of plants that may be imported in an
approved growing medium subject to specified growing, inspection, and
certification requirements. We are taking this action in response to a
request by the Government of China and after determining that the
penjing plants established in growing media can be imported without
resulting in the introduction into the United States or the
dissemination within the United States of a plant pest or noxious weed.
This rule will relieve restrictions that currently allow these species
to be imported only as bare-rooted plants.
EFFECTIVE DATE: February 17, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. William Thomas, Import Specialist,
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road, Unit
140, Riverdale, MD 20737-1236; (301) 734-6799.
SUPPLEMENTARY INFORMATION:
Background
On September 20, 2000, we published in the Federal Register (65 FR
56803-56806, Docket No. 98-103-1) a proposal to amend the regulations
governing the importation of plants and plant products to allow
artificially dwarfed plants (penjing) of the genera Buxus, Ehretia
(Carmona), Podcarpus, Sageretia, and Serissa to be imported into the
United States from the People's Republic of China in an approved
growing medium subject to specified growing, inspection, and
certification requirements. We proposed this action after assessing the
pest risks associated with the importation of penjing established in
growing media from the People's Republic of China under the conditions
outlined in the proposed rule and determining that those plants could
be imported into the United States without presenting a significant
risk of introducing or disseminating dangerous plant pests. We
solicited comments regarding the proposed rule for 60 days, ending
November 20, 2000. We subsequently extended the comment period until
December 20, 2000 (see 65 FR 75187, Docket No. 98-103-2, published on
December 1, 2000).
In response to comments received on the proposed rule (discussed in
detail later in this document), the Animal and Plant Health Inspection
Service (APHIS) narrowed the application of the rule to five species of
plants (Buxus sinica, Sageretia thea, Serissa foetida, Podcarpus
macrophyllus, and Ehretia microphylla) from China and entered into
consultation with the U.S. Fish and Wildlife Service (FWS) to assess
the potential effects of the proposed action on endangered or
threatened species, as required under section 7 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). On April 10,
2003, FWS concluded the section 7 consultation process by concurring
with APHIS's determination that the importation of penjing plants from
China in growing media will not adversely affect federally listed or
proposed endangered or threatened species or their habitats. The
section 7 consultation for this rule is described later in this
document.
Upon receiving concurrence from FWS, APHIS completed an
environmental assessment 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's NEPA Implementing Procedures (7 CFR part 372). On September 15,
2003, we published in the Federal Register (68 FR 53956-53957, Docket
No. 98-103-3) a notice announcing the availability of the environmental
assessment, and solicited comments on the environmental assessment for
30 days ending October 15, 2003. On October 28, 2003, we published in
the Federal Register (68 FR 61391-61392, Docket No. 98-103-4) another
notice that extended the comment period on the environmental assessment
for an additional 15 days ending November 12, 2003.
Risk Assessments and Risk Management Analysis
The risk assessments that supported our proposed rule (referred to
elsewhere in this document as the 1996 risk assessments) identified
pests that are known to be associated with the five species of penjing
plants in China and assessed the risk posed by those pests in the
absence of the mitigative effects of the requirements of Sec. 319.37-
8(e), which are designed to establish and maintain a pest-free
production environment and ensure the use of pest-free seeds or parent
plants. Because the original risk assessments were prepared in
September 1996, APHIS believed it was appropriate to update them in
order to bring them up to date with current APHIS guidelines \1\ for
pathway-initiated risk assessments. The 1996 risk assessments were
based on guidelines applicable at the time those assessments were
drafted, and the updates were necessary to provide the most transparent
communication of risk possible at this time. The updated risk
assessment documents are referred to elsewhere in this document as the
2003 supplementary risk assessments.
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\1\ Version 5.02, available on the Internet at: http://www.aphis.usda.gov/ppq/pra/commodity/cpraguide.pdf
.
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Further, as noted by commenters, the 1996 risk assessments did not
contain a thorough description of how the mitigation measures required
under the regulations in Sec. 319.37-8(e) reduce the risk posed by the
specific quarantine pests of penjing that were identified in the risk
assessments. To address these
[[Page 2482]]
concerns, we have prepared a risk management analysis, ``Pest Risk
Management for Chinese Penjing Plants (September 15, 2003),'' that
includes a substantial discussion of how the risk mitigation measures
required under this final rule mitigate the risks posed by the classes
of quarantine pests that were identified as likely to follow the
commodity import pathway. The 2003 risk management analysis, as well as
the 2003 supplemental risk assessments are available on the Internet at
http://www.aphis.usda.gov/ppq/pim/.
Determination by the Secretary
In this document, APHIS is adopting its proposal to allow the
importation of penjing plants from China established in an approved
growing medium as a final rule, with the changes discussed in this
document. Specifically, we are allowing the importation of Buxus
sinica, Sageretia thea, Serissa foetida, Podcarpus macrophyllus, and
Ehretia microphylla penjing plants in growing media from China only.
Under Sec. 412(a) of the Plant Protection Act, the Secretary of
Agriculture may prohibit or restrict the importation and entry of any
plant or plant product if the Secretary determines that the prohibition
or restriction is necessary to prevent the introduction into the United
States or the dissemination within the United States of a plant pest or
noxious weed.
The Secretary has determined that it is not necessary to prohibit
the importation of five species of penjing plants from China that are
established in an approved growing medium in order to prevent the
introduction into the United States or the dissemination within the
United States of a plant pest or noxious weed. This determination is
based on the findings of the risk documents referred to earlier in this
document and the Secretary's judgment that the application of the
measures required under this rule will prevent the introduction or
dissemination of plant pests into the United States.
Regulatory Requirements
Under this final rule, penjing plants of the species Buxus sinica,
Sageretia thea, Serissa foetida, Podocarpus macrophyllus, and Ehretia
microphylla imported in growing media are subject to the requirements
of paragraph (a) of Sec. 319.37-8 of the regulations, which 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 that plant pest
risk. 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)).
That combination approach found in Sec. 319.37-8(e) provides
conditions under which plants from 10 listed taxa may be imported into
the United States established in an approved growing medium. In
addition to other requirements, Sec. 319.37-8(e):
[sbull] Specifies the types of growing media that may be used;
[sbull] Requires plants to be grown in accordance with written
agreements between APHIS and the plant protection service of the
country where the plants are grown and between the foreign plant
protection service and the grower;
[sbull] 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);
[sbull] Restricts the source of the seeds or parent plants used to
produce the plants, and requires grow-out or treatment of parent plants
imported into the exporting country from another country;
[sbull] 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
[sbull] 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 plant protection service
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.
In addition to being subject to the general requirements of Sec.
319.37-8(e), under this final rule, penjing plants imported from China
in growing media must also meet the following requirements:
[sbull] The propagative materials used to produce the penjing
plants may enter an approved greenhouse only as seeds, tissue cultures,
unrooted cuttings, or rooted cuttings without growing media. Rooted
cuttings may not be established or grown in soil at any time. Rooted
cuttings may be established in a greenhouse or outside the greenhouse
on raised benches (46 cm in height) in pots containing only APHIS
approved growing media.
[sbull] When any cuttings are introduced into the greenhouse, they
must be free of growing media, inspected, and found free of plant pests
and then treated with a pesticide dip approved by the Animal and Plant
Quarantine Service of the People's Republic of China that will control
mites, scale insects, whiteflies, thrips, and fungi. The plants must be
propagated from mother plants that have been visually inspected by an
APHIS inspector or an inspector of the Animal and Plant Quarantine
Service of the People's Republic of China and found free of certain
pests.
[sbull] The penjing plants must be grown in a greenhouse that meets
the requirements of Sec. 319.37-8(e) for at least 6 months immediately
prior to export.
[sbull] While in the greenhouse, plants must be treated with
appropriate pesticides at least once every 10 days or as needed for 3
months before shipping to maintain a pest-free condition.
These additional requirements were determined to be necessary
according to risk analysis to mitigate the unique risks posed by the
five species of penjing plants that are eligible for importation from
China in growing media under this final rule.
Other Recent Revisions to Regulations Pertaining to Imported
Artificially Dwarfed Plants
On August 19, 2002, APHIS published in the Federal Register a final
rule (67 FR 53727-53731, Docket No. 00-042-2) that amended the
regulations pertaining to all imported artificially dwarfed plants.
Under the requirements established by that final rule (contained in
Sec. 319.37-5(q)), imported artificially dwarfed plants must be grown
in accordance with the following requirements and be accompanied by a
phytosanitary certificate containing declarations that those
requirements have been met:
[sbull] The artificially dwarfed plants must be grown for at least
2 years in a greenhouse or screenhouse in a nursery registered with the
government of the country where the plants were grown;
[sbull] The greenhouse or screenhouse in which the artificially
dwarfed plants are grown must have screening with openings of not more
than 1.6 mm on all vents and openings, and all
[[Page 2483]]
entryways must be equipped with automatic closing doors;
[sbull] The artificially dwarfed plants must be grown in pots
containing only sterile growing media during the 2-year period when
they are grown in a greenhouse or screenhouse in a registered nursery;
[sbull] The artificially dwarfed plants must be grown on benches at
least 50 cm above the ground during the 2-year period when they are
grown in a greenhouse or screenhouse in a registered nursery; and
[sbull] The plants and the greenhouse or screenhouse and nursery
where they are grown must be inspected for any evidence of pests and
found free of pests of quarantine significance to the United States at
least once every 12 months by the plant protection service of the
country where the plants are grown.
We wish to clarify that, for the purposes of the regulations,
plants less than 2 years of age are not considered to be artificially
dwarfed, even if they have been trained in the same manner as other
artificially dwarfed plants. Although the regulations in Sec. 319.37-
5(q) require artificially dwarfed plants to be grown in a greenhouse
for 2 years, plants that are less than 2 years of age may be imported
subject to applicable regulations in ``Subpart--Nursery Stock, Plants,
Roots, Bulbs, Seeds, and Other Plant Products'' (Sec. Sec. 319.37
through 319.37-14).
The regulations in Sec. 319.37-5(q) were proposed and adopted
after publication of our proposed rule regarding the importation of
penjing from China in growing media, and were intended to address the
risk that imported artificially dwarfed plants could be infested by
longhorned beetles. These requirements do not apply to penjing plants
imported from China in growing media under the regulations in Sec.
319.37-8(e) unless the imported penjing plants are 2 years of age or
older. Penjing plants less than 2 years of age that are grown in
accordance with the requirements of Sec. 319.37-8(e) are not likely to
become infested with longhorned beetles due to pest-exclusionary
greenhouse conditions. Furthermore, such plants are not likely to be of
suitable size to provide harborage for wood-boring beetles.
We believe that plants that are 2 years of age or greater may reach
dimensions that could provide harborage for longhorned beetles, and
therefore, penjing plants imported from China in growing media that are
2 years of age or older must satisfy the requirements of this final
rule and the requirements of Sec. 319.37-5(q). For example, the
regulations in Sec. 319.37-5(q) require that plants be grown for 2
years in a greenhouse or screenhouse with screen openings no greater
than 1.6 mm in size, while Sec. 319.37-8(e) requires that plants be
grown for 6 months in a greenhouse with screen openings no greater than
0.6 mm in size. Again, both requirements must be satisfied. One way to
satisfy both requirements would be to grow the plants in accordance
with Sec. 319.37-5(q) for 18 months, and then move them to a
greenhouse that meets the requirements of Sec. 319.37-8(e) for 6
additional months. Alternately, the plants could be grown in a
greenhouse that meets the requirements of Sec. 319.37-8(e) for a total
of 24 months, thus eliminating the need for multiple facilities and the
movement of plants.
The current regulations in Sec. 319.37-5(q) do not make it clear
that plants less than 2 years of age are not subject to the regulations
in that section. We are therefore clarifying that fact in this final
rule. This change will not affect the way the current regulations are
enforced, and is necessary to clarify what imported plants are subject
to the requirements of Sec. 319.37-5(q), especially in light of the
revisions made to the regulations by this final rule.
Discussion of Public Comments on the Proposed Rule
We received eight comments on the proposed rule. Two comments,
which arrived during the first 60 days of the comment period, simply
asked for an extension of the comment period, which we granted. The
other six comments were from representatives of plant industry
organizations, an invasive species interest group, and representatives
of State agricultural agencies.
We also received seven comments in response to our September 2003
notice of the availability of the environmental assessment. Some of
those comments pertain to the risk documents or to the proposed rule
for this action. All of these comments are addressed below, along with
comments submitted during the comment period for the proposed rule.
Compliance and APHIS's Ability to Enforce
One commenter stated that due to budget cuts and downsizing in
Federal agencies, it is unclear whether APHIS can continue to conduct
adequate inspections, especially in the face of an increase in the
amount of plant material entering the United States.
While some Federal agencies have been subject to budget cuts and
downsizing, APHIS's appropriated funding for Agricultural Quarantine
Inspection (AQI) Programs has doubled since 1998, from approximately
$27.2 million to $55 million in 2002. Funds collected via AQI user fees
have increased from $140.5 million in 1998 to $260 million in 2002. The
inspections required under this rule will not be affected by the
transfer of APHIS personnel to the Department of Homeland Security
(DHS). All plants imported under this rule are required to be imported
into Federal plant inspection stations,\2\ which continue to be staffed
by specially trained APHIS, not DHS, inspectors. APHIS has reviewed its
resources and believes it has adequate resources available to ensure
compliance with the conditions of the final rule.
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\2\ A list of Federal plant inspection stations is contained in
7 CFR 319.37-14(b).
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Another commenter suggested that some inspectors may not be able to
recognize every pest of risk, and claimed that APHIS's own pest
interception data show that inspectors are often unable to identify the
genus and species of intercepted pests.
When an unknown pest is found, inspectors may allow treatment of
the commodity; they may allow the shipper to re-export the commodity to
the country of origin, or, in some cases, to another country, or they
may destroy the commodity, if necessary. Such decisions are based on
the information that is available on the pests and are made in
consultation with APHIS-Plant Protection and Quarantine's National
Identification Service,\3\ which is made up of national experts on pest
identification.
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\3\ See http://www.aphis.usda.gov/ppq/nis/ for more information
on National Identification Services.
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One commenter stated that the conditions imposed by Sec. 319.37-8
cannot be verified by APHIS because the cost of attempting to verify
compliance is a significant expense and would require an unprecedented
level of cooperation from other governments and their agencies.
Under the regulations in Sec. 319.37-8, there must be an agreement
between APHIS and a foreign entity for enforcement of the regulations
in that section. In this case, the agreement will technically be
between APHIS and the national plant protection organization of China.
This agreement is referred to elsewhere in this document as the
bilateral workplan. Each grower who wishes to export to the United
States under the regulations must enter into an agreement with the
national plant protection organization of the People's Republic of
China whereby he or she must agree to comply with the
[[Page 2484]]
provisions of the regulations in Sec. 319.37-8 and to allow APHIS
inspectors, and representatives of the People's Republic of China's
national plant protection organization, access to the growing facility
as necessary to monitor compliance with the provisions of that section.
China's national plant protection organization is responsible for
ongoing oversight of the program. APHIS inspectors will monitor for
compliance with the regulations by making periodic visits to production
sites, as is the case with current and past plants in growing media
programs such as the following:
[sbull] In the Netherlands, two to four greenhouses (companies)
have participated in the plants in growing media program each year
since 1990. Both ferns and Anthurium have been grown and exported to
the United States. Currently, three greenhouses are in the program.
APHIS plant health specialists inspect the greenhouses 4 to 12 times a
year for compliance with program requirements, including the absence of
plant pests. No greenhouses have been found to be noncompliant, and no
plant pests have been found on any of these visits.
[sbull] In Israel, one greenhouse growing ferns and African violets
participated in the plants in growing media program between 1990 and
1994. This facility was inspected by APHIS plant health specialists
three to five times a year. Again, no greenhouses were found to be
noncompliant and no plant pests were found.
Based on our experience with these programs, we are confident that
the safeguards work, and that we can verify compliance effectively.
One commenter questioned what will happen if parties are caught out
of compliance, including in the event of pest- or disease-infested
shipments.
If APHIS determines that certain species of penjing imported from
China in growing media contain quarantine or actionable pests, APHIS
will investigate the source of the detection and apply appropriate
measures to mitigate the pest risk, including stopping imports from a
specific producer or shutting down the entire program, if the
circumstances show that either of these actions is warranted.
Risk Assessment
As noted earlier in this document, several commenters expressed
that the rule should apply only to imports of Buxus sinica, Sageretia
thea, Serissa foetida, Podocarpus macrophyllus, and Ehretia microphylla
penjing plants, since those were the only species considered in the
1996 risk assessments. The commenters expressed concern that if the
rule was applied at the genus level for each species without
considering the unique risks posed by other species within the genus,
imports would pose greater pest risks than APHIS estimated in its risk
assessments.
We agree with commenters' concerns, and this final rule allows only
the importation of Buxus sinica, Sageretia thea, Serissa foetida,
Podocarpus macrophyllus, and Ehretia microphylla penjing plants, as
those species were the only ones considered in the 1996 risk
assessments.
Several commenters stated that APHIS should reexamine its 1996 pest
risk assessments, analysis procedures, and policies to ensure that they
are consistent with current levels of scientific knowledge and
standards. Commenters suggested that the 1996 risk assessments should
form ``a link between scientific data and decision makers,'' but also
that decisionmakers must have accurate and adequate scientific data
upon which to base their decisions--which, the commenters argued, is
not the case in this rulemaking. The commenters further claimed that
the risk assessors' conclusions were not supported by enough scientific
information and that the risk assessments should describe the processes
and information sources used to estimate the risk posed by the
importation of each plant species.
As noted elsewhere in this document, we have updated the 1996 risk
assessment to bring them up to current standards. These updates
included (1) inserting the data from the 1996 risk assessment into the
risk assessment document format currently used by APHIS, (2) searching
for additional research and data published since the 1996 risk
assessment was prepared that could have a bearing on the findings of
the risk assessment, and (3) preparing a risk management analysis to
address how to reduce the risk posed by quarantine pests of the five
species of penjing that can be expected to follow the import pathway.
The 2003 supplemental risk assessments and risk management analysis
also cite scientific evidence upon which conclusions were based.
We believe that by making the link between the identified
quarantine pests and the mitigation measures more apparent, we have
addressed the commenters' concerns about the need for a link between
scientific data and decisionmakers. The 2003 risk assessment and risk
management analysis are based on the best data available to us at the
time the documents were drafted, and they provide a clear and rational
basis as to why the five identified species of penjing imported from
People's Republic of China in growing media will not lead to the
introduction of plant pests or noxious weeds into the United States.
Further, the pest list contained in the 1996 and 2003 risk
assessments are based on (1) a search of all available scientific
literature and (2) APHIS's pest interception records for imported
plants of the five penjing species. As such, we examined data on prior
bare-root penjing imports and visited some of the production sites that
would export as a result of the final rule. Furthermore, any exports of
the five species of penjing by People's Republic of China would be
contingent on an inspection of the production sites by APHIS and the
execution of the bilateral workplan described earlier in this document.
We believe our 2003 risk analysis provides an adequate analysis of the
risks posed by quarantine pests, and documents how the measures in
Sec. 319.37-8(e) remove those pests from the import pathway.
Several commenters stated that basing a risk assessment on a
literature search has some inherent weaknesses. One of the commenters
stated that literature searches do not catch all pests due to the fact
that pests have different common names, and because only the title
words of literature are searched. Several commenters also stated that
insufficient scientific literature and biological information regarding
penjing pests exists to justify reliance upon a literature search, as
the five species of penjing are not a major agricultural commodity and
research has not been conducted to the necessary depth for every pest
on every penjing species. Several commenters noted that penjing is an
uncommon crop, and that as such, has not had the extensive research
that more widely produced crops typically endure. Another commenter
claimed that the risk potential for all the pest species identified may
be high, yet due to a lack of information, the potential effects of
penjing importation cannot be adequately addressed at this time.
Another commenter stated that the 1996 risk assessment may not consider
all potential pests, and relatedly, other commenters stated that the
risk mitigations are not designed to protect against all potential
unidentified pests.
The purpose of conducting an analysis of the risk posed by imported
agricultural commodities is to evaluate available scientific evidence
and to provide an evaluation of the risk associated with the
importation of those commodities. As such, APHIS can only
[[Page 2485]]
make the determination to allow the importation of the commodity based
on the current state of scientific knowledge. In developing the list of
pests that are analyzed in the 1996 and 2003 risk assessments, we began
with a list of pests provided to us by People's Republic of China. We
then consulted applicable scientific literature (including field
surveys done to date) and reviewed APHIS's records to determine what
pests were intercepted on imported plants of the five penjing species.
Literature searches are unique to each risk analysis, and typically
begin with broad searches of both abstracts of publications and the
entire text of publications, depending on the database being searched.
These initial searches typically use scientific species, genus, and
family names, as well as known common names of plants. As analysts
learn more about the pests involved and their nomenclature, additional
pest-specific searches are conducted. We believe these sources provide
an adequate means to identify and assess pests of concern, even on
plants considered to be uncommon crops.
While we do not believe there is a shortage of appropriate
scientific information in this specific case, if APHIS were to regulate
the trade of agricultural commodities based on the risk posed by
unknown factors, such an action could be viewed as highly arbitrary,
which could potentially affect the export markets for our own
domestically produced commodities. Under the Plant Protection Act,
APHIS protects American agriculture while facilitating the trade of
agricultural commodities. There is always some uncertainty associated
with the risk posed by imported agricultural products, and if zero risk
were the standard applied, there would be no international trade in
agricultural products. While we can never be certain that our methods,
regulations, and policies will exclude pests 100 percent of the time,
our goal is to do just that, to the extent practicable. We are
confident that the measures required under this rule will mitigate the
pest risk posed by importing penjing plants of the species Buxus
sinica, Sageretia thea, Serissa foetida, Podocarpus macrophyllus, and
Ehretia microphylla in approved growing media. Our judgment is
supported by the fact that bare-rooted penjing plants and the growing
media in which they will be imported have separately been imported from
throughout the world for many years with no known associated pest
introductions. Given that the plants in growing media will be subject
to a number of additional requirements (the effects of which are
considered and evaluated in the 2003 risk management analysis) that do
not apply to bare-rooted plants, we believe that the risk posed by
known and unknown pests is appropriately reduced, to the extent
practicable, by the measures required by this final rule.
Several commenters stated that we had not included certain pests of
concern in the 1996 pest risk assessments. The commenters also claimed
that the risk assessments should be reevaluated in light of past
detections of wood-boring citrus longhorned beetles that were believed
to be associated with imported artificially dwarfed plants.
As described earlier in this document, in August 2002, APHIS
amended the regulations pertaining to the importation of artificially
dwarfed plants from all countries. Those amendments to the regulations
were intended to address the risk that imported artificially dwarfed
plants could contain longhorned beetles. Further, we are confident that
our 1996 risk assessments and our 2003 risk assessment and management
documents consider all pests known to be associated with the five
species of penjing. Based on the findings of our risk documents, we
believe that the measures contained in Sec. 319.37-8(e) will
effectively remove known quarantine pests from the import pathway. As
stated previously, the measures contained in Sec. 319.37-5(q) will
effectively address the risk posed by longhorned beetles.
Risk Management
Several commenters claimed that inspection is not a reliable
mitigation against many pests, including pathogens.
Inspection is only one of several risk mitigation measures required
by this final rule to be applied to penjing plants imported from China
in growing media, and is not intended to be the sole source of
protection against the introduction of pests, including pathogens. The
combined effects of several other measures required are described in
detail in the 2003 risk management analysis. We believe the application
of the measures required by the plants in growing media regulations in
Sec. 319.37-8(e), as revised, is sufficient to reduce the risk posed
by penjing plants imported from China in growing media to the extent
practicable.
One commenter suggested that APHIS should require plant defoliation
prior to export of plants from China, since defoliation would eliminate
many foliar pathogens and make visual inspections of the plant at the
port of entry easier to conduct.
We are confident that the proposed preshipment inspection and
pesticide sprays will remove foliar pests of concern from the import
pathway. Furthermore, it is standard practice for inspectors at plant
inspection stations to visually inspect the entire imported plant,
including foliage.
Several commenters noted that the proposed rule's provisions allow
field-grown plants to be moved into a greenhouse, and claimed that the
risk posed by such an action is unacceptable due to the potential for
field-grown plants to become infested with soil-based pests such as
nematodes prior to entry into the greenhouse.
We agree that the risks noted by commenters should be further
mitigated. In response, we are prohibiting the entry of field-grown
plants into approved greenhouses. Under this final rule, the
propagative materials used to produce artificially dwarfed (penjing)
plants may enter an approved greenhouse only as seeds, tissue cultures,
unrooted cuttings, or rooted cuttings with no attached growing media.
Furthermore, cuttings may not be established or grown in soil at any
time, but may be established in a greenhouse in approved media or
outside the greenhouse on raised benches (46 cm in height) in pots
containing only APHIS approved growing media. We believe this revision
to our proposal reduces the risk that plants entering an approved
greenhouse could be infested with nematodes or other soil-based pests
to the extent practicable.
One commenter stated that the risk mitigations contained in the
proposed rule rely too heavily on the use of chemicals and further
suggested that serious alien pests are resistant to many highly toxic
and persistent chemical insecticides. That commenter also noted that
many effective pesticides are no longer available in the United States.
Another commenter suggested that APHIS needs to require the use of
specific chemicals and provide efficacy data for each one.
There is no specific scientific evidence that any of the quarantine
pests affecting the five species of penjing are resistant to
pesticides. We are confident that the measures required under the
regulations in Sec. 319.37-8(e) will reduce the risk posed by penjing
plants imported from China, regardless of whether or not the pests are
resistant to pesticides. Our judgment is supported by the fact that
these plants have been imported bare-rooted for
[[Page 2486]]
many years, with no known associated pest introductions. Given that the
plants in growing media will be subject to a number of additional
requirements that do not apply to bare-rooted plants, we believe that
the risks are appropriately mitigated.
APHIS generally does not require, by regulation, that specific
pesticides be used to control pests as part of foreign import programs,
given that pesticide labels are subject to change and given that
certain pesticides may not be available in all countries. Rather, APHIS
will not enter into a bilateral workplan with an exporting country
unless the exporting country provides us with data on the efficacy of
pesticides that are to be applied as part of a regulatory system.
One commenter claimed that the success of the proposed rule depends
upon the cooperation and enforcement of the government of exporting
country, which in many cases simply are inadequate or underfunded. The
commenter claimed that compliance with the conditions spelled out in
Sec. 319.37-8(e) could only be assured if an inspector were on-site
every hour of every day in every ``certified'' greenhouse--and perhaps
not even then--and stated that signing an agreement does not guarantee
that it will be followed. The commenter stated that APHIS should take
extra precautions to enter only into agreements that have a high
likelihood of compliance and claimed that there is no such assurance in
this case.
The regulations in Sec. 319.37-8 require that for penjing
producers in the People's Republic of China to export Buxus sinica,
Sageretia thea, Serissa foetida, Podocarpus macrophyllus, and Ehretia
microphylla to the United States, there must be an agreement in place
that stipulates provisions for how the regulations will be enforced.
Furthermore, each grower who wishes to export to the United States
under the regulations must enter into an agreement with the national
plant protection organization of the People's Republic of China whereby
he or she must agree to comply with the provisions of the regulations
in Sec. 319.37-8 and to allow APHIS inspectors, and representatives of
the People's Republic of China's national plant protection service,
access to the growing facility as necessary to monitor compliance with
the provisions of that section.
We disagree with the commenter that these agreements do not provide
for verification that the conditions specified in the regulations will
be followed. As noted elsewhere in this document, APHIS monitors
production sites to ensure compliance with the regulations. If the
regulations are not followed, inspections of the production sites and
inspections of the imported plants at the ports of entry in the United
States will reveal as much, and APHIS may hold imports until an
investigation can be completed and appropriate measures initiated,
including stopping imports from a specific producer or shutting down
the entire program, if the circumstances show that such an action is
warranted. For this reason, the national plant protection organization
of the People's Republic of China and growers have an economic
incentive to follow the regulations.
Several commenters stated that screens of 0.6 mm mesh are
inadequate to keep out certain important pests.
The screen mesh size required under the regulations in Sec.
319.37-8(e) is sufficient to exclude most life stages of all quarantine
pests of the five penjing species. Mesh screening is one part of the
systems approach, and those screens are used in conjunction with
pesticide dips; these measures act as redundant phytosanitary measures
to remove all pests of concern from the pathway. Regular inspections of
growing premises are intended to ensure that plants are grown in a
pest-free environment, and our past experience with this type of
program provides evidence that this approach is successful.
Growing Media
Some commenters stated that increased risk of pest introduction
comes not from penjing plants but from the medium in which they are
shipped, which, they maintain, the 1996 risk assessment did not
consider. The commenters stated that the likelihood of importing pests
and diseases is greatly increased where plants are already established
in sphagnum, or any other growing medium, as bare-root plants allow a
more thorough inspection of plant roots and easier detection of any
pests or diseases which may be present. One commenter stated that the
medium also provides harborage for dormant pest stages and may delay
pest and disease symptoms. Another commenter stated that insects and
other pests that feed on roots are found in substrates during part of
their life cycle may not be noticed by the APHIS inspector during
inspection. The commenters also stated that there may be an
unacceptable risk of pest introduction associated with even bare-root
penjing.
The 1996 risk assessment and 2003 risk documents consider the fact
that growing media has an effect on pests' ability to find suitable
shelter and an effect on the ability of inspectors to detect certain
pests that may be obscured by growing media. Specifically, the risk
assessment took these factors into consideration in its estimates of
the likelihood of introduction. The risk posed by growing media in and
of itself was not considered in the risk assessment, because the
specific types of growing media are already approved and listed in
Sec. 319.37-8(e)(1) of the regulations, and have been successfully
imported into the United States for years. Such media do not present a
risk of pest introduction into the United States.
Based on many years of inspections of bare-rooted artificially
dwarfed plants, we do not believe that it is necessary to impose any
additional restrictions on their entry, beyond those we established in
2002 (described earlier in this document). We believe the recently
amended regulations provide protection against the introduction of
pests known to infest such plants.
One commenter stated, without providing specific evidence, that
growing media increases the possibility that the imported commodity
will be a host for bacteria and viruses.
We are aware that many plants, including those not established in
growing media, carry bacterial and viral pathogens. Available
literature, however, indicates that none of these pathogens are
specifically identified as a pest of the five species of penjing. As
stated elsewhere in this document, we can only make determinations as
to whether a new agricultural commodity can be safely imported based on
available scientific evidence, and we are not aware of any evidence
that supports the commenter's suggestion. Given that the commenter did
not identify particular viruses and bacteria, we have no basis to
revise our risk documents.
One commenter stated that plants should be required to be
established in sterile growing media rather than unused media, as was
proposed.
Based on years of importations and inspections of various types of
approved growing media we are confident that the approved growing media
listed in Sec. 319.37-8(e)(1), by virtue of their natural composition,
are inhospitable to most pest species, and need not be sterilized to
remain pest-free. Further, APHIS intends to require under the
conditions of the bilateral workplan for this program that media will
have to be safeguarded against pest infestation prior to entry into the
greenhouse.
Other General Comments
Several commenters expressed confusion regarding our use of the
terms
[[Page 2487]]
penjing and artificially dwarfed plants, and requested we clarify them.
A plant is considered by APHIS to be artificially dwarfed if the
plant and its root system are trained and/or trimmed by a grower to
restrict the plant's growth and to create or maintain an aesthetically
pleasing miniature plant. Penjing is an art form which utilizes
artificially dwarfed plants.
Nearly any species of plant can be artificially dwarfed, but
certain species are preferred by growers due to their natural
characteristics and ability to respond to training. Such plants are
artificially dwarfed to create miniature landscapes in pots. In fact, a
literal translation of the Chinese word penjing is ``landscape in a
pot.'' The Chinese term penjing, like the Japanese term bonsai, simply
refers to any plant that has received this kind of training, regardless
of species of the plant. To clarify, this final rule applies to plants
of Buxus sinica, Sageretia thea, Serissa foetida, Podocarpus
macrophyllus, and Ehretia microphylla that have been artificially
dwarfed by growers, and that are imported in growing media from China.
One commenter stated that the regulatory flexibility analysis
included in the proposed rule was superficial and not sensitive to the
losses the commenter suggested that U.S. plant retailers and importers
would face as a result of the importation of penjing established in
growing media from China. The commenter also suggested that the
economic analysis did not adequately account for the extra costs and
losses that U.S. growers may suffer should a penjing-related pest
become established in the country.
The commenter did not provide specific figures or other data for us
to evaluate. APHIS is bound under international trade agreements to
remove technical barriers to trade in the event that such barriers are
found by scientific analysis to be unnecessary. In this case, we have
conducted risk analyses that found that all quarantine pests associated
with the five species of penjing from China are effectively removed
from the import pathway by the measures required under Sec. 319.37-
8(e). As such, we have determined that it is not necessary to prohibit
those penjing species from the People's Republic of China in approved
growing media. We believe our final regulatory flexibility analysis
complies with the requirements of the Regulatory Flexibility Act, as
amended. Further, our analysis makes use of all the relevant data that
we could locate.
One commenter suggested that the proposed rule was published
prematurely because APHIS's Section 7 consultations with the U.S. Fish
and Wildlife Service were incomplete.
We have now concluded those consultations, and we have received
concurrence from the U.S. Fish and Wildlife Service. Information
regarding those findings is available by contacting the person listed
under FOR FURTHER INFORMATION CONTACT.
Another commenter expressed confusion as to why the title for the
environmental assessment for this action referred to a final rule, when
no final rule had been published at the time the environmental
assessment was made available for public review.
The environmental assessment for this action pertained simply to
this rulemaking action, and evaluated the potential environmental
effects of the proposed imports given the application of the provisions
of this final rule, which are different from the provisions originally
proposed.
Another commenter stated that the body and conclusion of the
environmental assessment made contradictory statements regarding
eradication and control programs.
We note the potential for confusion in these statements, and have
revised the environmental assessment to eliminate the potential for
confusion. The conclusion now clearly corresponds to statements made
within the body of the document regarding control and eradication
programs.
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
one change, as discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The 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 this rule we are amending the regulations governing the
importation of plants and plant products to add artificially dwarfed
(penjing) plants of the species Buxus sinica, Ehretia microphylla,
Podocarpus macrophyllus, Sageretia thea, and Serissa foetida from the
People's Republic of China to the list of plants that may be imported
in an approved growing medium subject to specified growing, inspection,
and certification requirements. This rule will relieve restrictions
that currently allow these species to be imported only as bare-rooted
plants.
This analysis provides a qualitative assessment of the potential
costs and benefits to U.S. interests and domestic small entities that
are associated with the regulatory change. Given that pest risks will
be adequately mitigated by the application of measures required by this
rule, both costs and benefits associated with the rule derive primarily
from increased availability of artificially dwarfed plants. Costs of
the regulations will be borne largely by U.S. penjing growers and
producers who could experience increased competition and marginally
lowered prices. Benefits will be enjoyed by U.S. consumers, who will
have access to an increased variety of penjing for consumption at
lowered prices, and also by U.S. penjing importers (many of whom are
also growers).
Historically, the five penjing species have been enterable from
China as bare-rooted plants. Penjing potted in growing media may have
some advantages over bare-rooted plants, including the potential for
enhanced survival time in transit and decreased transit costs. Bare-
rooted plants have short survival time outside of potting media and
must be shipped by air freight. Potted plants, on the other hand, are
more likely to tolerate the long and much less expensive ocean freight
transit process.
Comparison of Regulatory Alternatives
APHIS considered three alternatives to the implementation of a rule
to allow the importation of penjing plants in growing media from China:
(1) No action (no change to the current regulations), (2) a rule change
to allow the importation of 5 species of penjing plants in approved
growing media subject only to the general requirements contained in
Sec. 319.37-8(e) without additional restrictions that are specific to
penjing, and (3) a rule change to allow the importation of 5 species of
penjing plants in approved growing media subject to the general
requirements contained in Sec. 319.37-8(e) and subject to additional
restrictions that are specific to penjing (preferred alternative).
Under the first alternative (no change to the current regulations)
APHIS would continue to allow the importation of bare-rooted penjing
plants from China, according to the current regulations in Sec. Sec.
319.37 through 319.37-14 and would not allow penjing plants to be
imported in approved media. This alternative was not chosen because we
have conducted risk analyses that found that all quarantine pests
associated with the five species of penjing from China are effectively
removed from the import pathway by the measures required under Sec.
319.37-8(e). As such, we have determined that it is not necessary to
[[Page 2488]]
prohibit those penjing species from the People's Republic of China in
approved growing media.
The second alternative would allow importation of B. sinica, E.
microphylla, P. macrophyullus, S. thea, and S. foetida in approved
growing media from China under the universal requirements that apply to
all plants imported in growing media under Sec. 319.37-8(e), without
additional penjing-specific restrictions. This alternative was not
chosen because it did not adequately mitigate the risk posed by
specific pests that may be associated with the plants in media in
China.
Under the third alternative, APHIS would allow the importation of
penjing plants in APHIS-approved growing media provided that certain
phytosanitary requirements are met. This is the preferred regulatory
option because it effectively mitigates the risk posed by all
identified pests and is responsive to China's request.
The changes to the regulations in Sec. 319.37-8(e) include
specific risk management measures that, when applied, will provide
adequate protection against the introduction into the United States of
certain pests that may be present in shipments of penjing plants from
China that are established in growing media. The components of this
regulatory system, either used singly or in combination with one
another, work toward ensuring that plant pests or diseases will not be
imported with penjing plants from China. The components of the
regulatory system are described in detail earlier in this document and
in the 2003 risk management analysis.
Description of Domestic Industry
Neither the U.S. Department of Agriculture nor the U.S. Census
Bureau report domestic production data or trade data for artificially
dwarfed plants. Available data on imports, which are based on number of
shipments rather than number of plants, shows that in 2001, 207
shipments of artificially dwarfed plants entered the United States.
Almost half (97) of the shipments were from China, 23 were from Japan,
13 were from Vietnam, and the remaining 37 were from Korea, Hong Kong,
Canada, and other sources.
A National Arboretum survey of North American nurseries and
businesses involved in supplying artificially dwarfed plants and
related products \4\ identified 367 bonsai and penjing firms, 95
percent of which were in the United States (not including retail
nurseries, garden centers, florists, or kiosks found in large U.S.
shopping malls, which buy small numbers of plants for resale). The
number of firms has been increasing steadily since the early 1950s. One
hundred eight firms (30 percent) were identified in the Southeast, 102
(28 percent) were identified in the Southwest, including California in
particular, 84 (23 percent) were identified in the Northeast, 37 (10
percent) were in the Midwest, and 26 (7 percent) in the Northwest;
however, a few of the firms identified in the Northeast and Northwest
are located in Canada. Ninety-seven (26 percent) full-service firms
were identified, which import, obtain from other sources, and produce
plants and supply all of the tools needed to cultivate and display
plants, as well as 82 plant and/or seed suppliers, 81 tool suppliers,
46 pot and container suppliers, 32 educational material suppliers, 28
suppliers of educational services, and one rock supplier.
---------------------------------------------------------------------------
\4\ Elias, T.S. ``Bonsai Bonanza.'' American Nurseryman. pp. 60-
66. April 1, 1999.
---------------------------------------------------------------------------
Of the 367 bonsai-related firms reported in the survey, the 225
most affected by this rule would probably be the full service bonsai
nurseries (97 firms in 1997), specialty stores selling plants (82 firms
in 1997), and stores selling containers and pots (46 firms in 1997).
Table 1.--U.S. National Arboretum Survey of North American Bonsai
Related Businesses in 1997
------------------------------------------------------------------------
Number of Percentage of
Type of company companies companies
------------------------------------------------------------------------
General stores
Full-service bonsai nurseries....... 97 26
Specialty stores:
Plants including seed............... 82 22
Tools, supplies, stands............. 81 22
Containers and pots................. 46 13
Magazines, books, and newsletters... 32 9
Consultants and teachers............ 28 8
Rocks............................... 1 0
-------------------------------
Total........................... 367 100
------------------------------------------------------------------------
This table was reproduced using data reported by Elias. Elias indicated
that bonsai nurseries are smaller in scale than nurseries supplying
traditional landscape trees, shrubs, and bedding plants and that,
therefore, gross retail sales are significantly smaller. Per-unit
sales, however, are among the highest in the industry: Mature bonsai
specimens can range from several hundred dollars to $5,000.
Retail Prices
Retail prices for penjing, reported by one of the larger full-
service firms on the west coast, range between $5 and $10 for 80
percent of the trees in inventory, $20 and $35 for 10 percent of the
trees in inventory, and $36 and up for the remainder.\5\ Three year old
penjing plants, 7 inches tall, typically sell for $20.00.
---------------------------------------------------------------------------
\5\ Muth, J. Personal communication. Bonsai Northwest. Seattle
WA, 2003.
---------------------------------------------------------------------------
In general, retail penjing prices increase with age, quality, and
the amount of labor devoted to production and maintenance. Retail
prices also appear to vary by species. A simple ordinary least squares
regression of retail prices on age, height, and species indicates that
retail prices increase almost $11 and $9 for each year a Japanese
bonsai and Chinese penjing, respectively, have been alive. In addition,
retail prices increased over $14 and a little less than $2 for each
tree inch. The marginal impact of age on retail price was statistically
significant for bonsai and penjing; however, the marginal impacts were
not statistically different. The price data and regression statistics
indicate that Japanese bonsai are much more expensive than Chinese
penjing, as well as older and larger.
Given the age/price relationships reported here, we would expect
young penjing (greater than 6 months and less
[[Page 2489]]
than 24 months) plants imported from China under this rule to be at the
lower end of the price spectrum, and to sell for less than the $20.00
price reported for 7 inch 3-year-old penjing plants.
Transportation Costs
The majority of penjing are imported via air freight or ocean
vessel with soil removed from the roots. Because penjing and bonsai
eventually die if left bare-rooted too long (especially plants 25 years
old or older), only young trees can survive ocean shipment bare-rooted.
Transportation costs vary widely and depend on the size of the
tree, whether soil is attached to the roots, and the method of shipment
(See table below). It may cost roughly $0.50 to ocean ship a small
bare-rooted tree, $3.00 to ship the same bare-rooted tree airfreight,
and $115 to ship a larger bare-rooted tree airfreight.
Transportation costs increase dramatically for potted plants in
media, because costs are based on the dimensions of the tree and its
weight, both of which increase with the addition of growing media and a
pot. For example, it may cost anywhere between $400 and $1,200 to
airfreight a large tree with growing media attached to its roots \6\
and between $67 and $200 for ocean shipment, using the relationship
between ocean and airfreight costs for small bare-rooted trees.
---------------------------------------------------------------------------
\6\ Elias, T.S. Personal communication. U.S. National Arboretum,
Agricultural Research Service, U.S. Department of Agriculture.
Washington DC, 2003.
Table 2.--Retail Price for Small and Large Artificially Dwarfed Trees
----------------------------------------------------------------------------------------------------------------
$0.50 $3.00 $3.00 $21.00
---------------------------------------------------------------
Penjing retail price Water (bare- Air (bare- Water
root) root) (potted) Air (potted)
----------------------------------------------------------------------------------------------------------------
$28.11.......................................... 2% 11% 12% 74%
$35.85.......................................... 1% 8% 10% 58%
$43.58.......................................... 1% 7% 8% 48%
$51.32.......................................... 1% 6% 7% 41%
$59.06.......................................... 1% 5% 6% 35%
$66.79.......................................... 1% 4% 5% 31%
$74.53.......................................... 1% 4% 5% 28%
$82.27.......................................... 1% 4% 4% 25%
$90.00.......................................... 1% 3% 4% 23%
$97.74.......................................... 1% 3% 4% 31%
----------------------------------------------------------------------------------------------------------------
Data taken from relationships estimated by Michael Livingston, USDA (unpublished). Retail price for penjing was
estimated using an age of two years and a height appropriate to a two-year old tree.
The data in the table present air and sea shipping costs for bare-
rooted and potted penjing as a percentage of retail plant prices (for
plants of a height and price appropriate to 2 year old trees). Because
of data limitations, shipping costs for plants less than 2 years old
are not analyzed here. Shipping costs are a declining percentage of
retail price for all four transit modes examined here. Air freight for
penjing potted in media is by far the most expensive shipping option.
Sea shipment of bare-rooted plants is the least expensive; but is
usually not feasible because bare-rooted plants tend to die in transit
during the long sea voyage.
The cost of air shipping bare-rooted plants and the cost of sea
shipping potted plants in media are roughly equivalent. This
relationship suggests that the decision about whether to air freight
bare-rooted penjing plants or sea freight potted penjing to the United
States will probably be made on a case-by-case basis, and will depend
on factors such as size, age, and species.
Conclusions
Upon implementation of this rule, five species (Buxus sinica,
Ehretia microphylla, Podocarpus macrophyullus, Sageretia thea, and
Serissa foetida) of potted penjing plants (of any age, but which have
been grown in a greenhouse for at least 6 months) will be enterable
into the United States. All other species of penjing plants may
continue to enter the United States as bare-rooted plants as they have
done in the past. Under the new rule we might see increased imports of
less expensive potted penjing of the five designated species.
It is impossible to predict the amount by which volume of penjing
imports from China will increase under this rule. Compliance with the
more stringent mitigations required to ship potted penjing in media to
the United States will impose additional costs on Chinese penjing
producers. The extent to which the compliance costs associated with
potted penjing will offset potential cost savings associated with
shipping potted penjing is unclear. Possible sources of cost savings
for potted penjing include improved survival in-transit for some ages/
sizes plants; possible cost advantages associated with selling plants
and pots together as a unit; or unit cost savings that might be
associated with high volume importations of potted penjing by U.S.
chain stores using proprietary shipping lines.
Many full-service bonsai nurseries import penjing from China and
also grow their own artificially dwarfed plants; the net effects of
potentially increased imports of lower-priced penjing from China on
these firms is unclear. For large nurseries we contacted, roughly 45
percent of the current inventory is imported, mostly from China, and 55
percent is produced domestically or obtained from other sources. Potted
penjing between 6 and 24 months shipped under this rule could compete
with less expensive, younger, domestically produced dwarfed plants. But
at the same time, these same firms would benefit by being able to
import lower priced potted plants from China. Based on the National
Arboretum survey, roughly 97 full service bonsai nurseries could be
affected in this way. The net effect of the rule is expected to be
positive, as consumers and some firms in the bonsai/penjing industry
are expected to benefit from increased availability and potentially
lower prices.
Regulatory Impacts on Small Entities
The U.S. Small Business Administration defines a small full-service
bonsai and penjing nursery as one with annual sales receipts no
[[Page 2490]]
greater than $6 million (NAICS 444220 Nursery and Garden Centers) or
one with fewer than 100 employees (NAICS 422930 Flower, Nursery Stock,
and Florists' Supplies Wholesalers). There were 97 full service bonsai
nurseries in 1997. All of the full-service firms in the United States
are small entities (Elias 2003). Net impacts of the regulation on these
firms are unclear, as many of these firms are both importers and
growers of penjing; however, impacts are not expected to be
significant.
Small plant and/or seed suppliers are those with annual sales
receipts no greater than $0.75 million (NAICS 111421, Nursery and Tree
Production). There were 82 stores specializing in bonsai plants in
1997. It is thought that all of these were small firms. To the extent
that these firms benefit from increased availability and variety of
penjing at lower prices, the net effect of the regulation on these
firms could be positive.
Small pot, container, tool, and rock suppliers in the industry are
those with annual sales receipts no greater than $6 million (NAICS
444220, Nursery and Garden Centers; NAICS 451120, Hobby, Toy, and Game
Stores). There were 128 firms specializing in bonsai/penjing tools in
1997. All are believed to be small firms. To the extent that the supply
of penjing increases following implementation of this rule, the 82
bonsai tool and supply firms should be positively affected. Most custom
bonsai container and pot manufacturers produce pots for more expensive
plants, so they should not be significantly affected by this rule.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service 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
(FONSI) have been prepared for this final rule. The assessment provides
a basis for the conclusion that the importation of penjing plants from
China in approved growing media under the conditions specified in this
rule will not present a risk of introducing or disseminating plant
pests and 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 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's NEPA Implementing Procedures (7 CFR
part 372).
The environmental assessment and FONSI may be viewed on the
Internet at http://www.aphis.usda.gov/ppd/es/ppqdocs.html. You may
request paper copies of the environmental assessment and FONSI from the
person listed under FOR FURTHER INFORMATION CONTACT. Please refer to
the title of the environmental assessment when requesting copies. The
environmental assessment and FONSI are also available for review in our
reading room, which is located in room 1141 of the USDA South Building,
14th Street and Independence Avenue SW., Washington, DC. Normal reading
room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except
holidays. To be sure someone is there to help you, please call (202)
690-2817 before coming.
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
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock,
Plant diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
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Accordingly, we are amending 7 CFR part 319 as follows:
PART 319--FOREIGN QUARANTINE NOTICES
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1. The authority citation for part 319 continues to read as follows:
Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7
CFR 2.22, 2.80, and 371.3.
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2. In Sec. 319.37-5, paragraph (q), the introductory text is revised
to read as follows:
Sec. 319.37-5 Special foreign inspection and certification
requirements.
* * * * *
(q) Any artificially dwarfed plant imported into the United States,
except for plants that are less than 2 years old, must have been grown
and handled in accordance with the requirements of this paragraph and
must be accompanied by a phytosanitary certificate of inspection that
was issued by the government of the country where the plants were
grown.
* * * * *
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3. In Sec. 319.37-8, paragraph (e) is amended as follows:
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a. By revising the introductory text to read as set forth below.
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b. In paragraph (e)(2)(ix), by removing the word ``and'' at the end of
the paragraph.
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c. In paragraph (e)(2)(x)(B), by removing the period at the end of the
paragraph and adding the word ``; and'' in its place.
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d. By adding new paragraph (e)(2)(xi).
Sec. 319.37-8 Growing media.
* * * * *
(e) A restricted article of any of the following groups of plants
may be imported established in an approved growing medium listed in
this paragraph if the restricted article meets the conditions of this
paragraph and is accompanied by a phytosanitary certificate issued by
the plant protection service of the country in which the restricted
article was grown that declares that the restricted article meets the
conditions of this paragraph:
Alstroemeria
Ananas \11\
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\11\ These articles are bromeliads, and if imported into Hawaii,
bromeliads are subject to postentry quarantine in accordance with
Sec. 319.7-7.
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Anthurium
Artificially dwarfed (penjing) plants from the People's Republic of
China of the following plant species: Buxus sinica, Ehretia
microphylla, Podocarpus macrophyllus, Sageretia thea, and Serissa
foetida.
Begonia
Gloxinia (=Sinningia)
Nidularium \11a\
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\11a\ See footnote 11.
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Peperomia
Polypodiophyta (=Filicales) (ferns)
Rhododendron from Europe
Saintpaulia.
* * * * *
(2) * * *
(xi) Plants of the species Buxus sinica, Ehretia microphylla,
Podocarpus macrophyllus, Sageretia thea, and
[[Page 2491]]
Serissa foetida from the People's Republic of China must also meet the
following conditions:
(A) Propagative cuttings. The propagative materials used to produce
the artificially dwarfed (penjing) plants may enter an approved
greenhouse only as seeds, tissue cultures, unrooted cuttings, or rooted
cuttings with no growing media. Rooted cuttings may not be established
or grown in soil at any time. Rooted cuttings may be established in a
greenhouse or outside the greenhouse on raised benches (46 cm in
height) in pots containing only APHIS approved growing media.
(B) Inspection and treatment. When any cuttings are introduced into
the greenhouse, they must be free of growing media, inspected, and
found free of plant pests and then treated with a pesticide dip
approved by the Animal and Plant Quarantine Service of the People's
Republic of China that will control mites, scale insects, whiteflies,
thrips, and fungi. The artificially dwarfed (penjing) plants must be
propagated from mother plants that have been visually inspected by an
APHIS inspector or an inspector of the Animal and Plant Quarantine
Service of the People's Republic of China and found free of the
following pests:
(1) For Buxus sinica: Guignardia miribelii, Macrophoma ehretia,
Meliola buxicola, and Puccinia buxi.
(2) For Ehretia microphylla: Macrophoma ehretia, Phakopsora
ehretiae, Pseudocercosporella ehretiae, Pseudocercospora ehretiae-
thyrsiflora, Uncinula ehretiae, Uredo ehretiae, and Uredo garanbiensis.
(3) For Podocarpus macrophyllus: Pestalosphaeria jinggangensis,
Pestalotia diospyri, Phellinus noxius, and Sphaerella podocarpi.
(4) For Sageretia thea: Aecidium sageretiae.
(5) For Serissa foetida: Melampsora serissicola.
(C) Growing. The artificially dwarfed (penjing) plants must be
grown in an approved greenhouse for at least 6 months immediately prior
to export.
(D) Additional treatments. While in the greenhouse, plants must be
treated with appropriate pesticides at least once every 10 days or as
needed for three months before shipping to maintain a pest-free
condition.
* * * * *
Done in Washington, DC, this 13th day of January 2004.
Bobby R. Acord,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-1066 Filed 1-15-04; 8:45 am]
BILLING CODE 3410-34-P