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Rules and Regulations Federal Register Vol. 69, No. 11

Friday, January 16, 2004

This section of the FEDERAL REGISTER 56806, Docket No. 98–103–1) a proposal implementing the procedural provisions contains regulatory documents having general to amend the regulations governing the of NEPA (40 CFR parts 1500–1508), (3) applicability and legal effect, most of which importation of plants and plant USDA regulations implementing NEPA are keyed to and codified in the Code of products to allow artificially dwarfed (7 CFR part 1b), and (4) APHIS’s NEPA Federal Regulations, which is published under plants (penjing) of the genera Buxus, Implementing Procedures (7 CFR part 50 titles pursuant to 44 U.S.C. 1510. Ehretia (Carmona), Podcarpus, 372). On September 15, 2003, we The Code of Federal Regulations is sold by Sageretia, and Serissa to be imported published in the Federal Register (68 the Superintendent of Documents. Prices of into the United States from the People’s FR 53956–53957, Docket No. 98–103–3) new books are listed in the first FEDERAL Republic of China in an approved a notice announcing the availability of REGISTER issue of each week. growing medium subject to specified the environmental assessment, and growing, inspection, and certification solicited comments on the requirements. We proposed this action environmental assessment for 30 days DEPARTMENT OF AGRICULTURE after assessing the pest risks associated ending October 15, 2003. On October with the importation of penjing 28, 2003, we published in the Federal Animal and Plant Health Inspection established in growing media from the Register (68 FR 61391–61392, Docket Service People’s Republic of China under the No. 98–103–4) another notice that conditions outlined in the proposed rule extended the comment period on the 7 CFR Part 319 and determining that those plants could environmental assessment for an [Docket No. 98–103–5] be imported into the United States additional 15 days ending November 12, without presenting a significant risk of 2003. Importation of Artificially Dwarfed introducing or disseminating dangerous Plants in Growing Media from the Risk Assessments and Risk Management plant pests. We solicited comments Analysis People’s Republic of China regarding the proposed rule for 60 days, The risk assessments that supported AGENCY: Animal and Plant Health ending November 20, 2000. We subsequently extended the comment our proposed rule (referred to elsewhere Inspection Service, USDA. in this document as the 1996 risk ACTION: Final rule. period until December 20, 2000 (see 65 FR 75187, Docket No. 98–103–2, assessments) identified pests that are known to be associated with the five SUMMARY: We are amending the published on December 1, 2000). species of penjing plants in China and regulations governing the importation of In response to comments received on assessed the risk posed by those pests in plants and plant products to add the proposed rule (discussed in detail the absence of the mitigative effects of artificially dwarfed (penjing) plants of later in this document), the Animal and the requirements of § 319.37–8(e), the species Buxus sinica, Ehretia Plant Health Inspection Service (APHIS) which are designed to establish and microphylla, Podocarpus macrophyllus, narrowed the application of the rule to maintain a pest-free production Sageretia thea, and Serissa foetida from five species of plants (Buxus sinica, environment and ensure the use of pest- the People’s Republic of China to the Sageretia thea, Serissa foetida, free seeds or parent plants. Because the list of plants that may be imported in an Podcarpus macrophyllus, and Ehretia original risk assessments were prepared approved growing medium subject to microphylla) from China and entered in September 1996, APHIS believed it specified growing, inspection, and into consultation with the U.S. Fish and was appropriate to update them in order certification requirements. We are Wildlife Service (FWS) to assess the to bring them up to date with current taking this action in response to a potential effects of the proposed action APHIS guidelines 1 for pathway- request by the Government of China and on endangered or threatened species, as initiated risk assessments. The 1996 risk after determining that the penjing plants required under section 7 of the assessments were based on guidelines established in growing media can be Endangered Species Act of 1973, as applicable at the time those assessments imported without resulting in the amended (16 U.S.C. 1531 et seq.). On were drafted, and the updates were introduction into the United States or April 10, 2003, FWS concluded the necessary to provide the most the dissemination within the United section 7 consultation process by transparent communication of risk States of a plant pest or noxious weed. concurring with APHIS’s determination possible at this time. The updated risk This rule will relieve restrictions that that the importation of penjing plants assessment documents are referred to currently allow these species to be from China in growing media will not elsewhere in this document as the 2003 imported only as bare-rooted plants. adversely affect federally listed or supplementary risk assessments. EFFECTIVE DATE: February 17, 2004. proposed endangered or threatened Further, as noted by commenters, the species or their habitats. The section 7 FOR FURTHER INFORMATION CONTACT: Mr. 1996 risk assessments did not contain a consultation for this rule is described William Thomas, Import Specialist, thorough description of how the later in this document. Phytosanitary Issues Management Team, mitigation measures required under the Upon receiving concurrence from PPQ, APHIS, 4700 River Road, Unit 140, regulations in § 319.37–8(e) reduce the FWS, APHIS completed an Riverdale, MD 20737–1236; (301) 734– risk posed by the specific quarantine environmental assessment in 6799. pests of penjing that were identified in accordance with: (1) The National SUPPLEMENTARY INFORMATION: the risk assessments. To address these Environmental Policy Act of 1969 Background (NEPA), as amended (42 U.S.C. 4321 et 1 Version 5.02, available on the Internet at: http:/ On September 20, 2000, we published seq.), (2) regulations of the Council on /www.aphis.usda.gov/ppq/pra/commodity/ in the Federal Register (65 FR 56803– Environmental Quality for cpraguide.pdf.

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concerns, we have prepared a risk the exceptions to the requirement take approved greenhouse only as seeds, management analysis, ‘‘Pest Risk into account factors that mitigate that tissue cultures, unrooted cuttings, or Management for Chinese Penjing Plants plant pest risk. Those exceptions, which rooted cuttings without growing media. (September 15, 2003),’’ that includes a are found in paragraphs (b) through (e) Rooted cuttings may not be established substantial discussion of how the risk of § 319.37–8, consider either the origin or grown in soil at any time. Rooted mitigation measures required under this of the plants and growing media cuttings may be established in a final rule mitigate the risks posed by the (paragraph (b)), the nature of the greenhouse or outside the greenhouse classes of quarantine pests that were growing media (paragraphs (c) and (d)), on raised benches (46 cm in height) in identified as likely to follow the or the use of a combination of growing pots containing only APHIS approved commodity import pathway. The 2003 conditions, approved media, growing media. risk management analysis, as well as the inspections, and other requirements • When any cuttings are introduced 2003 supplemental risk assessments are (paragraph (e)). into the greenhouse, they must be free available on the Internet at http:// That combination approach found in of growing media, inspected, and found www.aphis.usda.gov/ppq/pim/. § 319.37–8(e) provides conditions under free of plant pests and then treated with a pesticide dip approved by the Animal Determination by the Secretary which plants from 10 listed taxa may be imported into the United States and Plant Quarantine Service of the In this document, APHIS is adopting established in an approved growing People’s Republic of China that will its proposal to allow the importation of medium. In addition to other control mites, scale insects, whiteflies, penjing plants from China established in requirements, § 319.37–8(e): thrips, and fungi. The plants must be an approved growing medium as a final • Specifies the types of growing propagated from mother plants that rule, with the changes discussed in this media that may be used; have been visually inspected by an document. Specifically, we are allowing • Requires plants to be grown in APHIS inspector or an inspector of the the importation of Buxus sinica, accordance with written agreements Animal and Plant Quarantine Service of Sageretia thea, Serissa foetida, between APHIS and the plant protection the People’s Republic of China and Podcarpus macrophyllus, and Ehretia service of the country where the plants found free of certain pests. microphylla penjing plants in growing are grown and between the foreign plant • The penjing plants must be grown media from China only. protection service and the grower; in a greenhouse that meets the Under § 412(a) of the Plant Protection • Requires the plants to be rooted and requirements of § 319.37–8(e) for at least Act, the Secretary of Agriculture may grown in a greenhouse that meets 6 months immediately prior to export. prohibit or restrict the importation and certain requirements for pest exclusion • While in the greenhouse, plants entry of any plant or plant product if the and that is used only for plants being must be treated with appropriate Secretary determines that the grown in compliance with § 319.37– pesticides at least once every 10 days or prohibition or restriction is necessary to 8(e); as needed for 3 months before shipping prevent the introduction into the United • Restricts the source of the seeds or to maintain a pest-free condition. States or the dissemination within the parent plants used to produce the These additional requirements were United States of a plant pest or noxious plants, and requires grow-out or determined to be necessary according to weed. treatment of parent plants imported into risk analysis to mitigate the unique risks The Secretary has determined that it the exporting country from another posed by the five species of penjing is not necessary to prohibit the country; plants that are eligible for importation importation of five species of penjing • Specifies the sources of water that from China in growing media under this plants from China that are established in may be used on the plants, the height of final rule. an approved growing medium in order the benches on which the plants must Other Recent Revisions to Regulations to prevent the introduction into the be grown, and the conditions under Pertaining to Imported Artificially United States or the dissemination which the plants must be stored and Dwarfed Plants within the United States of a plant pest packaged; and or noxious weed. This determination is • Requires that the plants be On August 19, 2002, APHIS published based on the findings of the risk inspected in the greenhouse and found in the Federal Register a final rule (67 documents referred to earlier in this free of evidence of plant pests no more FR 53727–53731, Docket No. 00–042–2) document and the Secretary’s judgment than 30 days prior to the exportation of that amended the regulations pertaining that the application of the measures the plants. to all imported artificially dwarfed required under this rule will prevent the A phytosanitary certificate issued by plants. Under the requirements introduction or dissemination of plant the plant protection service of the established by that final rule (contained pests into the United States. country in which the plants were grown in § 319.37–5(q)), imported artificially that declares that the above conditions dwarfed plants must be grown in Regulatory Requirements have been met must accompany the accordance with the following Under this final rule, penjing plants of plants at the time of importation. These requirements and be accompanied by a the species Buxus sinica, Sageretia thea, conditions have been used successfully phytosanitary certificate containing Serissa foetida, Podocarpus to mitigate the risk of pest introduction declarations that those requirements macrophyllus, and Ehretia microphylla associated with the importation into the have been met: imported in growing media are subject United States of approved plants • The artificially dwarfed plants must to the requirements of paragraph (a) of established in growing media. be grown for at least 2 years in a § 319.37–8 of the regulations, which In addition to being subject to the greenhouse or screenhouse in a nursery requires, with certain exceptions, that general requirements of § 319.37–8(e), registered with the government of the plants offered for importation into the under this final rule, penjing plants country where the plants were grown; United States be free of sand, soil, earth, imported from China in growing media • The greenhouse or screenhouse in and other growing media. This must also meet the following which the artificially dwarfed plants are requirement is intended to help prevent requirements: grown must have screening with the introduction of plant pests that • The propagative materials used to openings of not more than 1.6 mm on might be present in the growing media; produce the penjing plants may enter an all vents and openings, and all

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entryways must be equipped with greenhouse or screenhouse with screen since 1998, from approximately $27.2 automatic closing doors; openings no greater than 1.6 mm in size, million to $55 million in 2002. Funds • The artificially dwarfed plants must while § 319.37–8(e) requires that plants collected via AQI user fees have be grown in pots containing only sterile be grown for 6 months in a greenhouse increased from $140.5 million in 1998 growing media during the 2-year period with screen openings no greater than 0.6 to $260 million in 2002. The inspections when they are grown in a greenhouse or mm in size. Again, both requirements required under this rule will not be screenhouse in a registered nursery; must be satisfied. One way to satisfy affected by the transfer of APHIS • The artificially dwarfed plants must both requirements would be to grow the personnel to the Department of be grown on benches at least 50 cm plants in accordance with § 319.37–5(q) Homeland Security (DHS). All plants above the ground during the 2-year for 18 months, and then move them to imported under this rule are required to period when they are grown in a a greenhouse that meets the be imported into Federal plant greenhouse or screenhouse in a requirements of § 319.37–8(e) for 6 inspection stations,2 which continue to registered nursery; and additional months. Alternately, the • be staffed by specially trained APHIS, The plants and the greenhouse or plants could be grown in a greenhouse not DHS, inspectors. APHIS has screenhouse and nursery where they are that meets the requirements of § 319.37– reviewed its resources and believes it grown must be inspected for any 8(e) for a total of 24 months, thus has adequate resources available to evidence of pests and found free of pests eliminating the need for multiple ensure compliance with the conditions of quarantine significance to the United facilities and the movement of plants. of the final rule. States at least once every 12 months by The current regulations in § 319.37– Another commenter suggested that the plant protection service of the 5(q) do not make it clear that plants less some inspectors may not be able to country where the plants are grown. than 2 years of age are not subject to the recognize every pest of risk, and We wish to clarify that, for the regulations in that section. We are claimed that APHIS’s own pest purposes of the regulations, plants less therefore clarifying that fact in this final interception data show that inspectors than 2 years of age are not considered rule. This change will not affect the way are often unable to identify the genus to be artificially dwarfed, even if they the current regulations are enforced, and and species of intercepted pests. have been trained in the same manner is necessary to clarify what imported When an unknown pest is found, as other artificially dwarfed plants. plants are subject to the requirements of inspectors may allow treatment of the Although the regulations in § 319.37– § 319.37–5(q), especially in light of the 5(q) require artificially dwarfed plants commodity; they may allow the shipper revisions made to the regulations by this to re-export the commodity to the to be grown in a greenhouse for 2 years, final rule. plants that are less than 2 years of age country of origin, or, in some cases, to may be imported subject to applicable Discussion of Public Comments on the another country, or they may destroy regulations in ‘‘Subpart—Nursery Stock, Proposed Rule the commodity, if necessary. Such Plants, Roots, Bulbs, Seeds, and Other decisions are based on the information We received eight comments on the that is available on the pests and are Plant Products’’ (§§ 319.37 through proposed rule. Two comments, which 319.37–14). made in consultation with APHIS-Plant arrived during the first 60 days of the Protection and Quarantine’s National The regulations in § 319.37–5(q) were comment period, simply asked for an proposed and adopted after publication Identification Service,3 which is made extension of the comment period, which up of national experts on pest of our proposed rule regarding the we granted. The other six comments importation of penjing from China in identification. were from representatives of plant One commenter stated that the growing media, and were intended to industry organizations, an invasive address the risk that imported conditions imposed by § 319.37–8 species interest group, and cannot be verified by APHIS because the artificially dwarfed plants could be representatives of State agricultural infested by longhorned beetles. These cost of attempting to verify compliance agencies. is a significant expense and would requirements do not apply to penjing We also received seven comments in require an unprecedented level of plants imported from China in growing response to our September 2003 notice cooperation from other governments media under the regulations in of the availability of the environmental and their agencies. § 319.37–8(e) unless the imported assessment. Some of those comments Under the regulations in § 319.37–8, penjing plants are 2 years of age or pertain to the risk documents or to the there must be an agreement between older. Penjing plants less than 2 years of proposed rule for this action. All of APHIS and a foreign entity for age that are grown in accordance with these comments are addressed below, enforcement of the regulations in that the requirements of § 319.37–8(e) are along with comments submitted during section. In this case, the agreement will not likely to become infested with the comment period for the proposed technically be between APHIS and the longhorned beetles due to pest- rule. exclusionary greenhouse conditions. national plant protection organization of Furthermore, such plants are not likely Compliance and APHIS’s Ability to China. This agreement is referred to to be of suitable size to provide Enforce elsewhere in this document as the harborage for wood-boring beetles. One commenter stated that due to bilateral workplan. Each grower who We believe that plants that are 2 years budget cuts and downsizing in Federal wishes to export to the United States of age or greater may reach dimensions agencies, it is unclear whether APHIS under the regulations must enter into an that could provide harborage for can continue to conduct adequate agreement with the national plant longhorned beetles, and therefore, inspections, especially in the face of an protection organization of the People’s penjing plants imported from China in increase in the amount of plant material Republic of China whereby he or she growing media that are 2 years of age or entering the United States. must agree to comply with the older must satisfy the requirements of While some Federal agencies have this final rule and the requirements of been subject to budget cuts and 2 A list of Federal plant inspection stations is contained in 7 CFR 319.37–14(b). § 319.37–5(q). For example, the downsizing, APHIS’s appropriated 3 See http://www.aphis.usda.gov/ppq/nis/ for regulations in § 319.37–5(q) require that funding for Agricultural Quarantine more information on National Identification plants be grown for 2 years in a Inspection (AQI) Programs has doubled Services.

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provisions of the regulations in The commenters expressed concern that provide a clear and rational basis as to § 319.37–8 and to allow APHIS if the rule was applied at the genus level why the five identified species of inspectors, and representatives of the for each species without considering the penjing imported from People’s People’s Republic of China’s national unique risks posed by other species Republic of China in growing media plant protection organization, access to within the genus, imports would pose will not lead to the introduction of plant the growing facility as necessary to greater pest risks than APHIS estimated pests or noxious weeds into the United monitor compliance with the provisions in its risk assessments. States. of that section. China’s national plant We agree with commenters’ concerns, Further, the pest list contained in the protection organization is responsible and this final rule allows only the 1996 and 2003 risk assessments are for ongoing oversight of the program. importation of Buxus sinica, Sageretia based on (1) a search of all available APHIS inspectors will monitor for thea, Serissa foetida, Podocarpus scientific literature and (2) APHIS’s pest compliance with the regulations by macrophyllus, and Ehretia microphylla interception records for imported plants making periodic visits to production penjing plants, as those species were the of the five penjing species. As such, we sites, as is the case with current and past only ones considered in the 1996 risk examined data on prior bare-root plants in growing media programs such assessments. penjing imports and visited some of the as the following: Several commenters stated that production sites that would export as a • In the Netherlands, two to four APHIS should reexamine its 1996 pest result of the final rule. Furthermore, any greenhouses (companies) have risk assessments, analysis procedures, exports of the five species of penjing by participated in the plants in growing and policies to ensure that they are People’s Republic of China would be media program each year since 1990. consistent with current levels of contingent on an inspection of the Both ferns and Anthurium have been scientific knowledge and standards. production sites by APHIS and the grown and exported to the United Commenters suggested that the 1996 execution of the bilateral workplan States. Currently, three greenhouses are risk assessments should form ‘‘a link described earlier in this document. We in the program. APHIS plant health between scientific data and decision believe our 2003 risk analysis provides specialists inspect the greenhouses 4 to makers,’’ but also that decisionmakers an adequate analysis of the risks posed 12 times a year for compliance with must have accurate and adequate by quarantine pests, and documents program requirements, including the scientific data upon which to base their how the measures in § 319.37–8(e) absence of plant pests. No greenhouses decisions—which, the commenters remove those pests from the import have been found to be noncompliant, argued, is not the case in this pathway. and no plant pests have been found on rulemaking. The commenters further Several commenters stated that basing any of these visits. claimed that the risk assessors’ a risk assessment on a literature search • In Israel, one greenhouse growing conclusions were not supported by has some inherent weaknesses. One of ferns and African violets participated in enough scientific information and that the commenters stated that literature the plants in growing media program the risk assessments should describe the searches do not catch all pests due to between 1990 and 1994. This facility processes and information sources used the fact that pests have different was inspected by APHIS plant health to estimate the risk posed by the common names, and because only the specialists three to five times a year. importation of each plant species. title words of literature are searched. Again, no greenhouses were found to be As noted elsewhere in this document, Several commenters also stated that noncompliant and no plant pests were we have updated the 1996 risk insufficient scientific literature and found. assessment to bring them up to current biological information regarding penjing Based on our experience with these standards. These updates included (1) pests exists to justify reliance upon a programs, we are confident that the inserting the data from the 1996 risk literature search, as the five species of safeguards work, and that we can verify assessment into the risk assessment penjing are not a major agricultural compliance effectively. document format currently used by commodity and research has not been One commenter questioned what will APHIS, (2) searching for additional conducted to the necessary depth for happen if parties are caught out of research and data published since the every pest on every penjing species. compliance, including in the event of 1996 risk assessment was prepared that Several commenters noted that penjing pest- or disease-infested shipments. could have a bearing on the findings of is an uncommon crop, and that as such, If APHIS determines that certain the risk assessment, and (3) preparing a has not had the extensive research that species of penjing imported from China risk management analysis to address more widely produced crops typically in growing media contain quarantine or how to reduce the risk posed by endure. Another commenter claimed actionable pests, APHIS will investigate quarantine pests of the five species of that the risk potential for all the pest the source of the detection and apply penjing that can be expected to follow species identified may be high, yet due appropriate measures to mitigate the the import pathway. The 2003 to a lack of information, the potential pest risk, including stopping imports supplemental risk assessments and risk effects of penjing importation cannot be from a specific producer or shutting management analysis also cite scientific adequately addressed at this time. down the entire program, if the evidence upon which conclusions were Another commenter stated that the 1996 circumstances show that either of these based. risk assessment may not consider all actions is warranted. We believe that by making the link potential pests, and relatedly, other between the identified quarantine pests commenters stated that the risk Risk Assessment and the mitigation measures more mitigations are not designed to protect As noted earlier in this document, apparent, we have addressed the against all potential unidentified pests. several commenters expressed that the commenters’ concerns about the need The purpose of conducting an rule should apply only to imports of for a link between scientific data and analysis of the risk posed by imported Buxus sinica, Sageretia thea, Serissa decisionmakers. The 2003 risk agricultural commodities is to evaluate foetida, Podocarpus macrophyllus, and assessment and risk management available scientific evidence and to Ehretia microphylla penjing plants, analysis are based on the best data provide an evaluation of the risk since those were the only species available to us at the time the associated with the importation of those considered in the 1996 risk assessments. documents were drafted, and they commodities. As such, APHIS can only

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make the determination to allow the number of additional requirements (the pathogens and make visual inspections importation of the commodity based on effects of which are considered and of the plant at the port of entry easier the current state of scientific knowledge. evaluated in the 2003 risk management to conduct. In developing the list of pests that are analysis) that do not apply to bare- We are confident that the proposed analyzed in the 1996 and 2003 risk rooted plants, we believe that the risk preshipment inspection and pesticide assessments, we began with a list of posed by known and unknown pests is sprays will remove foliar pests of pests provided to us by People’s appropriately reduced, to the extent concern from the import pathway. Republic of China. We then consulted practicable, by the measures required by Furthermore, it is standard practice for applicable scientific literature this final rule. inspectors at plant inspection stations to (including field surveys done to date) Several commenters stated that we visually inspect the entire imported and reviewed APHIS’s records to had not included certain pests of plant, including foliage. determine what pests were intercepted concern in the 1996 pest risk Several commenters noted that the on imported plants of the five penjing assessments. The commenters also proposed rule’s provisions allow field- species. Literature searches are unique claimed that the risk assessments grown plants to be moved into a to each risk analysis, and typically begin should be reevaluated in light of past greenhouse, and claimed that the risk with broad searches of both abstracts of detections of wood-boring citrus posed by such an action is unacceptable publications and the entire text of longhorned beetles that were believed to due to the potential for field-grown publications, depending on the database be associated with imported artificially plants to become infested with soil- being searched. These initial searches dwarfed plants. based pests such as nematodes prior to typically use scientific species, genus, As described earlier in this document, entry into the greenhouse. and family names, as well as known in August 2002, APHIS amended the We agree that the risks noted by common names of plants. As analysts regulations pertaining to the commenters should be further learn more about the pests involved and importation of artificially dwarfed mitigated. In response, we are their nomenclature, additional pest- plants from all countries. Those prohibiting the entry of field-grown plants into approved greenhouses. specific searches are conducted. We amendments to the regulations were Under this final rule, the propagative believe these sources provide an intended to address the risk that materials used to produce artificially adequate means to identify and assess imported artificially dwarfed plants dwarfed (penjing) plants may enter an pests of concern, even on plants could contain longhorned beetles. approved greenhouse only as seeds, considered to be uncommon crops. Further, we are confident that our 1996 risk assessments and our 2003 risk tissue cultures, unrooted cuttings, or While we do not believe there is a assessment and management documents rooted cuttings with no attached shortage of appropriate scientific consider all pests known to be growing media. Furthermore, cuttings information in this specific case, if associated with the five species of may not be established or grown in soil APHIS were to regulate the trade of penjing. Based on the findings of our at any time, but may be established in agricultural commodities based on the risk documents, we believe that the a greenhouse in approved media or risk posed by unknown factors, such an measures contained in § 319.37–8(e) outside the greenhouse on raised action could be viewed as highly will effectively remove known benches (46 cm in height) in pots arbitrary, which could potentially affect quarantine pests from the import containing only APHIS approved the export markets for our own pathway. As stated previously, the growing media. We believe this revision domestically produced commodities. measures contained in § 319.37–5(q) to our proposal reduces the risk that Under the Plant Protection Act, APHIS will effectively address the risk posed plants entering an approved greenhouse protects American agriculture while by longhorned beetles. could be infested with nematodes or facilitating the trade of agricultural other soil-based pests to the extent commodities. There is always some Risk Management practicable. uncertainty associated with the risk Several commenters claimed that One commenter stated that the risk posed by imported agricultural inspection is not a reliable mitigation mitigations contained in the proposed products, and if zero risk were the against many pests, including rule rely too heavily on the use of standard applied, there would be no pathogens. chemicals and further suggested that international trade in agricultural Inspection is only one of several risk serious alien pests are resistant to many products. While we can never be certain mitigation measures required by this highly toxic and persistent chemical that our methods, regulations, and final rule to be applied to penjing plants insecticides. That commenter also noted policies will exclude pests 100 percent imported from China in growing media, that many effective pesticides are no of the time, our goal is to do just that, and is not intended to be the sole source longer available in the United States. to the extent practicable. We are of protection against the introduction of Another commenter suggested that confident that the measures required pests, including pathogens. The APHIS needs to require the use of under this rule will mitigate the pest combined effects of several other specific chemicals and provide efficacy risk posed by importing penjing plants measures required are described in data for each one. of the species Buxus sinica, Sageretia detail in the 2003 risk management There is no specific scientific thea, Serissa foetida, Podocarpus analysis. We believe the application of evidence that any of the quarantine macrophyllus, and Ehretia microphylla the measures required by the plants in pests affecting the five species of in approved growing media. Our growing media regulations in § 319.37– penjing are resistant to pesticides. We judgment is supported by the fact that 8(e), as revised, is sufficient to reduce are confident that the measures required bare-rooted penjing plants and the the risk posed by penjing plants under the regulations in § 319.37–8(e) growing media in which they will be imported from China in growing media will reduce the risk posed by penjing imported have separately been imported to the extent practicable. plants imported from China, regardless from throughout the world for many One commenter suggested that APHIS of whether or not the pests are resistant years with no known associated pest should require plant defoliation prior to to pesticides. Our judgment is introductions. Given that the plants in export of plants from China, since supported by the fact that these plants growing media will be subject to a defoliation would eliminate many foliar have been imported bare-rooted for

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many years, with no known associated APHIS monitors production sites to effect on the ability of inspectors to pest introductions. Given that the plants ensure compliance with the regulations. detect certain pests that may be in growing media will be subject to a If the regulations are not followed, obscured by growing media. number of additional requirements that inspections of the production sites and Specifically, the risk assessment took do not apply to bare-rooted plants, we inspections of the imported plants at the these factors into consideration in its believe that the risks are appropriately ports of entry in the United States will estimates of the likelihood of mitigated. reveal as much, and APHIS may hold introduction. The risk posed by growing APHIS generally does not require, by imports until an investigation can be media in and of itself was not regulation, that specific pesticides be completed and appropriate measures considered in the risk assessment, used to control pests as part of foreign initiated, including stopping imports because the specific types of growing import programs, given that pesticide from a specific producer or shutting media are already approved and listed labels are subject to change and given down the entire program, if the in § 319.37–8(e)(1) of the regulations, that certain pesticides may not be circumstances show that such an action and have been successfully imported available in all countries. Rather, APHIS is warranted. For this reason, the into the United States for years. Such will not enter into a bilateral workplan national plant protection organization of media do not present a risk of pest with an exporting country unless the the People’s Republic of China and introduction into the United States. exporting country provides us with data growers have an economic incentive to Based on many years of inspections of on the efficacy of pesticides that are to follow the regulations. bare-rooted artificially dwarfed plants, be applied as part of a regulatory Several commenters stated that we do not believe that it is necessary to system. screens of 0.6 mm mesh are inadequate impose any additional restrictions on One commenter claimed that the to keep out certain important pests. their entry, beyond those we established success of the proposed rule depends The screen mesh size required under in 2002 (described earlier in this upon the cooperation and enforcement the regulations in § 319.37–8(e) is document). We believe the recently of the government of exporting country, sufficient to exclude most life stages of amended regulations provide protection which in many cases simply are all quarantine pests of the five penjing against the introduction of pests known inadequate or underfunded. The species. Mesh screening is one part of to infest such plants. commenter claimed that compliance the systems approach, and those screens One commenter stated, without with the conditions spelled out in are used in conjunction with pesticide providing specific evidence, that § 319.37–8(e) could only be assured if dips; these measures act as redundant growing media increases the possibility an inspector were on-site every hour of phytosanitary measures to remove all that the imported commodity will be a every day in every ‘‘certified’’ pests of concern from the pathway. host for bacteria and viruses. greenhouse—and perhaps not even Regular inspections of growing premises We are aware that many plants, then—and stated that signing an are intended to ensure that plants are including those not established in agreement does not guarantee that it grown in a pest-free environment, and growing media, carry bacterial and viral will be followed. The commenter stated our past experience with this type of pathogens. Available literature, that APHIS should take extra program provides evidence that this however, indicates that none of these precautions to enter only into approach is successful. pathogens are specifically identified as agreements that have a high likelihood Growing Media a pest of the five species of penjing. As of compliance and claimed that there is stated elsewhere in this document, we no such assurance in this case. Some commenters stated that can only make determinations as to The regulations in § 319.37–8 require increased risk of pest introduction whether a new agricultural commodity that for penjing producers in the comes not from penjing plants but from can be safely imported based on People’s Republic of China to export the medium in which they are shipped, available scientific evidence, and we are Buxus sinica, Sageretia thea, Serissa which, they maintain, the 1996 risk not aware of any evidence that supports foetida, Podocarpus macrophyllus, and assessment did not consider. The the commenter’s suggestion. Given that Ehretia microphylla to the United commenters stated that the likelihood of the commenter did not identify States, there must be an agreement in importing pests and diseases is greatly particular viruses and bacteria, we have place that stipulates provisions for how increased where plants are already no basis to revise our risk documents. the regulations will be enforced. established in sphagnum, or any other One commenter stated that plants Furthermore, each grower who wishes growing medium, as bare-root plants should be required to be established in to export to the United States under the allow a more thorough inspection of sterile growing media rather than regulations must enter into an plant roots and easier detection of any unused media, as was proposed. agreement with the national plant pests or diseases which may be present. Based on years of importations and protection organization of the People’s One commenter stated that the medium inspections of various types of approved Republic of China whereby he or she also provides harborage for dormant growing media we are confident that the must agree to comply with the pest stages and may delay pest and approved growing media listed in provisions of the regulations in disease symptoms. Another commenter § 319.37–8(e)(1), by virtue of their § 319.37–8 and to allow APHIS stated that insects and other pests that natural composition, are inhospitable to inspectors, and representatives of the feed on roots are found in substrates most pest species, and need not be People’s Republic of China’s national during part of their life cycle may not sterilized to remain pest-free. Further, plant protection service, access to the be noticed by the APHIS inspector APHIS intends to require under the growing facility as necessary to monitor during inspection. The commenters also conditions of the bilateral workplan for compliance with the provisions of that stated that there may be an unacceptable this program that media will have to be section. risk of pest introduction associated with safeguarded against pest infestation We disagree with the commenter that even bare-root penjing. prior to entry into the greenhouse. these agreements do not provide for The 1996 risk assessment and 2003 verification that the conditions specified risk documents consider the fact that Other General Comments in the regulations will be followed. As growing media has an effect on pests’ Several commenters expressed noted elsewhere in this document, ability to find suitable shelter and an confusion regarding our use of the terms

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penjing and artificially dwarfed plants, prematurely because APHIS’s Section 7 benefits to U.S. interests and domestic and requested we clarify them. consultations with the U.S. Fish and small entities that are associated with A plant is considered by APHIS to be Wildlife Service were incomplete. the regulatory change. Given that pest artificially dwarfed if the plant and its We have now concluded those risks will be adequately mitigated by the root system are trained and/or trimmed consultations, and we have received application of measures required by this by a grower to restrict the plant’s growth concurrence from the U.S. Fish and rule, both costs and benefits associated and to create or maintain an Wildlife Service. Information regarding with the rule derive primarily from aesthetically pleasing miniature plant. those findings is available by contacting increased availability of artificially Penjing is an art form which utilizes the person listed under FOR FURTHER dwarfed plants. Costs of the regulations artificially dwarfed plants. INFORMATION CONTACT. will be borne largely by U.S. penjing Nearly any species of plant can be Another commenter expressed growers and producers who could artificially dwarfed, but certain species confusion as to why the title for the experience increased competition and are preferred by growers due to their environmental assessment for this marginally lowered prices. Benefits will natural characteristics and ability to action referred to a final rule, when no be enjoyed by U.S. consumers, who will respond to training. Such plants are final rule had been published at the have access to an increased variety of artificially dwarfed to create miniature time the environmental assessment was penjing for consumption at lowered landscapes in pots. In fact, a literal made available for public review. prices, and also by U.S. penjing translation of the Chinese word penjing The environmental assessment for importers (many of whom are also is ‘‘landscape in a pot.’’ The Chinese this action pertained simply to this growers). term penjing, like the Japanese term rulemaking action, and evaluated the Historically, the five penjing species bonsai, simply refers to any plant that potential environmental effects of the have been enterable from China as bare- has received this kind of training, proposed imports given the application rooted plants. Penjing potted in growing regardless of species of the plant. To of the provisions of this final rule, media may have some advantages over clarify, this final rule applies to plants which are different from the provisions bare-rooted plants, including the of Buxus sinica, Sageretia thea, Serissa originally proposed. potential for enhanced survival time in foetida, Podocarpus macrophyllus, and Another commenter stated that the transit and decreased transit costs. Bare- Ehretia microphylla that have been body and conclusion of the rooted plants have short survival time artificially dwarfed by growers, and that environmental assessment made outside of potting media and must be are imported in growing media from contradictory statements regarding shipped by air freight. Potted plants, on China. eradication and control programs. the other hand, are more likely to One commenter stated that the We note the potential for confusion in tolerate the long and much less regulatory flexibility analysis included these statements, and have revised the expensive ocean freight transit process. in the proposed rule was superficial and environmental assessment to eliminate Comparison of Regulatory Alternatives not sensitive to the losses the the potential for confusion. The commenter suggested that U.S. plant conclusion now clearly corresponds to APHIS considered three alternatives retailers and importers would face as a statements made within the body of the to the implementation of a rule to allow result of the importation of penjing document regarding control and the importation of penjing plants in established in growing media from eradication programs. growing media from China: (1) No China. The commenter also suggested Therefore, for the reasons given in the action (no change to the current that the economic analysis did not proposed rule and in this document, we regulations), (2) a rule change to allow adequately account for the extra costs are adopting the proposed rule as a final the importation of 5 species of penjing and losses that U.S. growers may suffer rule, with the one change, as discussed plants in approved growing media should a penjing-related pest become in this document. subject only to the general requirements established in the country. contained in § 319.37–8(e) without The commenter did not provide Executive Order 12866 and Regulatory additional restrictions that are specific specific figures or other data for us to Flexibility Act to penjing, and (3) a rule change to evaluate. APHIS is bound under This rule has been reviewed under allow the importation of 5 species of international trade agreements to Executive Order 12866. The rule has penjing plants in approved growing remove technical barriers to trade in the been determined to be not significant for media subject to the general event that such barriers are found by the purposes of Executive Order 12866 requirements contained in § 319.37–8(e) scientific analysis to be unnecessary. In and, therefore, has not been reviewed by and subject to additional restrictions this case, we have conducted risk the Office of Management and Budget. that are specific to penjing (preferred analyses that found that all quarantine In this rule we are amending the alternative). pests associated with the five species of regulations governing the importation of Under the first alternative (no change penjing from China are effectively plants and plant products to add to the current regulations) APHIS would removed from the import pathway by artificially dwarfed (penjing) plants of continue to allow the importation of the measures required under § 319.37– the species Buxus sinica, Ehretia bare-rooted penjing plants from China, 8(e). As such, we have determined that microphylla, Podocarpus macrophyllus, according to the current regulations in it is not necessary to prohibit those Sageretia thea, and Serissa foetida from §§ 319.37 through 319.37–14 and would penjing species from the People’s the People’s Republic of China to the not allow penjing plants to be imported Republic of China in approved growing list of plants that may be imported in an in approved media. This alternative was media. We believe our final regulatory approved growing medium subject to not chosen because we have conducted flexibility analysis complies with the specified growing, inspection, and risk analyses that found that all requirements of the Regulatory certification requirements. This rule quarantine pests associated with the five Flexibility Act, as amended. Further, will relieve restrictions that currently species of penjing from China are our analysis makes use of all the allow these species to be imported only effectively removed from the import relevant data that we could locate. as bare-rooted plants. pathway by the measures required One commenter suggested that the This analysis provides a qualitative under § 319.37–8(e). As such, we have proposed rule was published assessment of the potential costs and determined that it is not necessary to

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prohibit those penjing species from the growing media. The components of this kiosks found in large U.S. shopping People’s Republic of China in approved regulatory system, either used singly or malls, which buy small numbers of growing media. in combination with one another, work plants for resale). The number of firms The second alternative would allow toward ensuring that plant pests or has been increasing steadily since the importation of B. sinica, E. microphylla, diseases will not be imported with early 1950s. One hundred eight firms P. macrophyullus, S. thea, and S. penjing plants from China. The (30 percent) were identified in the foetida in approved growing media from components of the regulatory system are Southeast, 102 (28 percent) were China under the universal requirements described in detail earlier in this identified in the Southwest, including that apply to all plants imported in document and in the 2003 risk California in particular, 84 (23 percent) growing media under § 319.37–8(e), management analysis. were identified in the Northeast, 37 (10 without additional penjing-specific Description of Domestic Industry percent) were in the Midwest, and 26 (7 restrictions. This alternative was not percent) in the Northwest; however, a chosen because it did not adequately Neither the U.S. Department of few of the firms identified in the Agriculture nor the U.S. Census Bureau mitigate the risk posed by specific pests Northeast and Northwest are located in report domestic production data or trade that may be associated with the plants Canada. Ninety-seven (26 percent) full- data for artificially dwarfed plants. in media in China. service firms were identified, which Available data on imports, which are Under the third alternative, APHIS import, obtain from other sources, and based on number of shipments rather produce plants and supply all of the would allow the importation of penjing than number of plants, shows that in tools needed to cultivate and display plants in APHIS-approved growing 2001, 207 shipments of artificially plants, as well as 82 plant and/or seed media provided that certain dwarfed plants entered the United suppliers, 81 tool suppliers, 46 pot and phytosanitary requirements are met. States. Almost half (97) of the shipments container suppliers, 32 educational This is the preferred regulatory option were from China, 23 were from Japan, material suppliers, 28 suppliers of because it effectively mitigates the risk 13 were from Vietnam, and the educational services, and one rock posed by all identified pests and is remaining 37 were from Korea, Hong supplier. responsive to China’s request. Kong, Canada, and other sources. The changes to the regulations in A National Arboretum survey of Of the 367 bonsai-related firms § 319.37–8(e) include specific risk North American nurseries and reported in the survey, the 225 most management measures that, when businesses involved in supplying affected by this rule would probably be applied, will provide adequate artificially dwarfed plants and related the full service bonsai nurseries (97 protection against the introduction into products 4 identified 367 bonsai and firms in 1997), specialty stores selling the United States of certain pests that penjing firms, 95 percent of which were plants (82 firms in 1997), and stores may be present in shipments of penjing in the United States (not including retail selling containers and pots (46 firms in plants from China that are established in nurseries, garden centers, florists, or 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 tra- ditional 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 In general, retail penjing prices $14 and a little less than $2 for each tree increase with age, quality, and the inch. The marginal impact of age on Retail prices for penjing, reported by amount of labor devoted to production retail price was statistically significant one of the larger full-service firms on and maintenance. Retail prices also for bonsai and penjing; however, the the west coast, range between $5 and appear to vary by species. A simple marginal impacts were not statistically $10 for 80 percent of the trees in ordinary least squares regression of different. The price data and regression inventory, $20 and $35 for 10 percent of retail prices on age, height, and species statistics indicate that Japanese bonsai the trees in inventory, and $36 and up indicates that retail prices increase are much more expensive than Chinese for the remainder.5 Three year old almost $11 and $9 for each year a penjing, as well as older and larger. penjing plants, 7 inches tall, typically Japanese bonsai and Chinese penjing, Given the age/price relationships sell for $20.00. respectively, have been alive. In reported here, we would expect young addition, retail prices increased over penjing (greater than 6 months and less

5 Muth, J. Personal communication. Bonsai 4 Elias, T.S. ‘‘Bonsai Bonanza.’’ American Northwest. Seattle WA, 2003. Nurseryman. pp. 60–66. April 1, 1999.

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than 24 months) plants imported from 25 years old or older), only young trees because costs are based on the China under this rule to be at the lower can survive ocean shipment bare-rooted. dimensions of the tree and its weight, end of the price spectrum, and to sell for Transportation costs vary widely and both of which increase with the less than the $20.00 price reported for depend on the size of the tree, whether addition of growing media and a pot. 7 inch 3-year-old penjing plants. soil is attached to the roots, and the For example, it may cost anywhere method of shipment (See table below). between $400 and $1,200 to airfreight a Transportation Costs It may cost roughly $0.50 to ocean ship large tree with growing media attached a small bare-rooted tree, $3.00 to ship to its roots 6 and between $67 and $200 The majority of penjing are imported the same bare-rooted tree airfreight, and for ocean shipment, using the via air freight or ocean vessel with soil $115 to ship a larger bare-rooted tree relationship between ocean and removed from the roots. Because airfreight. penjing and bonsai eventually die if left Transportation costs increase airfreight costs for small bare-rooted bare-rooted too long (especially plants dramatically for potted plants in media, trees.

TABLE 2.—RETAIL PRICE FOR SMALL AND LARGE ARTIFICIALLY DWARFED TREES

$0.50 $3.00 $3.00 $21.00 Penjing retail price Water Air Water Air (bare-root) (bare-root) (potted) (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 Serissa foetida) of potted penjing plants Many full-service bonsai nurseries sea shipping costs for bare-rooted and (of any age, but which have been grown import penjing from China and also potted penjing as a percentage of retail in a greenhouse for at least 6 months) grow their own artificially dwarfed plant prices (for plants of a height and will be enterable into the United States. plants; the net effects of potentially price appropriate to 2 year old trees). All other species of penjing plants may increased imports of lower-priced Because of data limitations, shipping continue to enter the United States as penjing from China on these firms is costs for plants less than 2 years old are bare-rooted plants as they have done in unclear. For large nurseries we not analyzed here. Shipping costs are a the past. Under the new rule we might contacted, roughly 45 percent of the declining percentage of retail price for see increased imports of less expensive current inventory is imported, mostly all four transit modes examined here. potted penjing of the five designated from China, and 55 percent is produced Air freight for penjing potted in media species. domestically or obtained from other is by far the most expensive shipping It is impossible to predict the amount sources. Potted penjing between 6 and option. Sea shipment of bare-rooted by which volume of penjing imports 24 months shipped under this rule plants is the least expensive; but is from China will increase under this could compete with less expensive, usually not feasible because bare-rooted rule. Compliance with the more younger, domestically produced plants tend to die in transit during the stringent mitigations required to ship dwarfed plants. But at the same time, long sea voyage. potted penjing in media to the United these same firms would benefit by being The cost of air shipping bare-rooted States will impose additional costs on able to import lower priced potted plants and the cost of sea shipping Chinese penjing producers. The extent plants from China. Based on the potted plants in media are roughly to which the compliance costs National Arboretum survey, roughly 97 equivalent. This relationship suggests associated with potted penjing will full service bonsai nurseries could be that the decision about whether to air offset potential cost savings associated affected in this way. The net effect of freight bare-rooted penjing plants or sea with shipping potted penjing is unclear. the rule is expected to be positive, as freight potted penjing to the United Possible sources of cost savings for consumers and some firms in the States will probably be made on a case- potted penjing include improved bonsai/penjing industry are expected to by-case basis, and will depend on survival in-transit for some ages/sizes benefit from increased availability and factors such as size, age, and species. plants; possible cost advantages potentially lower prices. associated with selling plants and pots Conclusions together as a unit; or unit cost savings Regulatory Impacts on Small Entities Upon implementation of this rule, that might be associated with high The U.S. Small Business five species (Buxus sinica, Ehretia volume importations of potted penjing Administration defines a small full- microphylla, Podocarpus by U.S. chain stores using proprietary service bonsai and penjing nursery as macrophyullus, Sageretia thea, and shipping lines. one with annual sales receipts no

6 U.S. Department of Agriculture. Washington DC, Elias, T.S. Personal communication. U.S. 2003. National Arboretum, Agricultural Research Service,

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greater than $6 million (NAICS 444220 risk of introducing or disseminating ■ 2. In § 319.37–5, paragraph (q), the Nursery and Garden Centers) or one plant pests and will not have a introductory text is revised to read as with fewer than 100 employees (NAICS significant impact on the quality of the follows: 422930 Flower, Nursery Stock, and human environment. Based on the Florists’ Supplies Wholesalers). There finding of no significant impact, the § 319.37–5 Special foreign inspection and certification requirements. were 97 full service bonsai nurseries in Administrator of the Animal and Plant 1997. All of the full-service firms in the Health Inspection Service has * * * * * United States are small entities (Elias determined that an environmental (q) Any artificially dwarfed plant 2003). Net impacts of the regulation on impact statement need not be prepared. imported into the United States, except for plants that are less than 2 years old, these firms are unclear, as many of these The environmental assessment and firms are both importers and growers of must have been grown and handled in FONSI were prepared in accordance accordance with the requirements of penjing; however, impacts are not with: (1) The National Environmental expected to be significant. this paragraph and must be Policy Act of 1969 (NEPA), as amended accompanied by a phytosanitary Small plant and/or seed suppliers are (42 U.S.C. 4321 et seq.), (2) regulations those with annual sales receipts no certificate of inspection that was issued of the Council on Environmental greater than $0.75 million (NAICS by the government of the country where Quality for implementing the 111421, Nursery and Tree Production). the plants were grown. procedural provisions of NEPA (40 CFR There were 82 stores specializing in parts 1500–1508), (3) USDA regulations * * * * * bonsai plants in 1997. It is thought that ■ implementing NEPA (7 CFR part 1b), 3. In § 319.37–8, paragraph (e) is all of these were small firms. To the and (4) APHIS’s NEPA Implementing amended as follows: extent that these firms benefit from ■ Procedures (7 CFR part 372). a. By revising the introductory text to increased availability and variety of read as set forth below. penjing at lower prices, the net effect of The environmental assessment and ■ b. In paragraph (e)(2)(ix), by removing the regulation on these firms could be FONSI may be viewed on the Internet at the word ‘‘and’’ at the end of the positive. http://www.aphis.usda.gov/ppd/es/ paragraph. Small pot, container, tool, and rock ppqdocs.html. You may request paper ■ c. In paragraph (e)(2)(x)(B), by suppliers in the industry are those with copies of the environmental assessment removing the period at the end of the annual sales receipts no greater than $6 and FONSI from the person listed under paragraph and adding the word ‘‘; and’’ million (NAICS 444220, Nursery and FOR FURTHER INFORMATION CONTACT. in its place. Garden Centers; NAICS 451120, Hobby, Please refer to the title of the ■ d. By adding new paragraph (e)(2)(xi). Toy, and Game Stores). There were 128 environmental assessment when firms specializing in bonsai/penjing requesting copies. The environmental § 319.37–8 Growing media. tools in 1997. All are believed to be assessment and FONSI are also available * * * * * small firms. To the extent that the for review in our reading room, which (e) A restricted article of any of the supply of penjing increases following is located in room 1141 of the USDA following groups of plants may be implementation of this rule, the 82 South Building, 14th Street and imported established in an approved bonsai tool and supply firms should be Independence Avenue SW., growing medium listed in this positively affected. Most custom bonsai Washington, DC. Normal reading room paragraph if the restricted article meets container and pot manufacturers hours are 8 a.m. to 4:30 p.m., Monday the conditions of this paragraph and is produce pots for more expensive plants, through Friday, except holidays. To be accompanied by a phytosanitary so they should not be significantly sure someone is there to help you, certificate issued by the plant protection affected by this rule. please call (202) 690–2817 before service of the country in which the Under these circumstances, the coming. restricted article was grown that declares that the restricted article meets Administrator of the Animal and Plant Paperwork Reduction Act Health Inspection Service has the conditions of this paragraph: determined that this action will not This final rule contains no new Alstroemeria have a significant economic impact on information collection or recordkeeping Ananas 11 a substantial number of small entities. requirements under the Paperwork Anthurium Artificially dwarfed (penjing) plants from the Executive Order 12988 Reduction Act of 1995 (44 U.S.C. 3501 et seq.). People’s Republic of China of the following This final rule has been reviewed plant species: Buxus sinica, Ehretia under Executive Order 12988, Civil List of Subjects in 7 CFR Part 319 microphylla, Podocarpus macrophyllus, Sageretia thea, and Serissa foetida. Justice Reform. This rule: (1) Preempts Bees, Coffee, Cotton, Fruits, Honey, Begonia all State and local laws and regulations Imports, Logs, Nursery stock, Plant that are inconsistent with this rule; (2) Gloxinia (=Sinningia) diseases and pests, Quarantine, Nidularium 11a has no retroactive effect; and (3) does Reporting and recordkeeping not require administrative proceedings Peperomia requirements, Rice, Vegetables. Polypodiophyta (=Filicales) (ferns) before parties may file suit in court Rhododendron from Europe challenging this rule. ■ Accordingly, we are amending 7 CFR Saintpaulia. National Environmental Policy Act part 319 as follows: * * * * * An environmental assessment and PART 319—FOREIGN QUARANTINE (2)*** (xi) Plants of the species Buxus sinica, finding of no significant impact (FONSI) NOTICES have been prepared for this final rule. Ehretia microphylla, Podocarpus The assessment provides a basis for the ■ 1. The authority citation for part 319 macrophyllus, Sageretia thea, and conclusion that the importation of continues to read as follows: 11 These articles are bromeliads, and if imported penjing plants from China in approved Authority: 7 U.S.C. 450 and 7701–7772; 21 into Hawaii, bromeliads are subject to postentry growing media under the conditions U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and quarantine in accordance with § 319.7–7. specified in this rule will not present a 371.3. 11a See footnote 11.

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Serissa foetida from the People’s DEPARTMENT OF AGRICULTURE The Department of Agriculture Republic of China must also meet the (USDA) is issuing this rule in following conditions: Agricultural Marketing Service conformance with Executive Order (A) Propagative cuttings. The 12866. propagative materials used to produce 7 CFR Part 959 This rule has been reviewed under the artificially dwarfed (penjing) plants [Docket No. FV03–959–4 FR] Executive Order 12988, Civil Justice may enter an approved greenhouse only Reform. Under the marketing order now as seeds, tissue cultures, unrooted Onions Grown in South Texas; in effect, South Texas onion handlers cuttings, or rooted cuttings with no Decreased Assessment Rate are subject to assessments. Funds to growing media. Rooted cuttings may not administer the order are derived from be established or grown in soil at any AGENCY: Agricultural Marketing Service, such assessments. It is intended that the time. Rooted cuttings may be USDA. assessment rate as issued herein will be established in a greenhouse or outside ACTION: Final rule. applicable to all assessable onions the greenhouse on raised benches (46 beginning August 1, 2003, and continue cm in height) in pots containing only SUMMARY: This rule decreases the until amended, suspended, or APHIS approved growing media. assessment rate established for the terminated. This rule will not preempt (B) Inspection and treatment. When South Texas Onion Committee any State or local laws, regulations, or any cuttings are introduced into the (Committee) for the 2003–04 and policies, unless they present an greenhouse, they must be free of subsequent fiscal periods from $0.085 to irreconcilable conflict with this rule. growing media, inspected, and found $0.03 per 50-pound equivalent of onions The Act provides that administrative free of plant pests and then treated with handled. The Committee locally proceedings must be exhausted before a pesticide dip approved by the Animal administers the marketing order which parties may file suit in court. Under and Plant Quarantine Service of the regulates the handling of onions grown section 608c(15)(A) of the Act, any People’s Republic of China that will in South Texas. Authorization to assess handler subject to an order may file control mites, scale insects, whiteflies, onion handlers enables the Committee with USDA a petition stating that the thrips, and fungi. The artificially to incur expenses that are reasonable order, any provision of the order, or any dwarfed (penjing) plants must be and necessary to administer the obligation imposed in connection with propagated from mother plants that program. The fiscal period began on the order is not in accordance with law have been visually inspected by an August 1 and ends July 31. The and request a modification of the order APHIS inspector or an inspector of the assessment rate will remain in effect or to be exempted therefrom. Such Animal and Plant Quarantine Service of indefinitely unless modified, handler is afforded the opportunity for the People’s Republic of China and suspended, or terminated. a hearing on the petition. After the found free of the following pests: EFFECTIVE DATE: January 20, 2004. hearing USDA would rule on the (1) For Buxus sinica: Guignardia FOR FURTHER INFORMATION CONTACT: petition. The Act provides that the miribelii, Macrophoma ehretia, Meliola Belinda G. Garza, Regional Manager, district court of the United States in any buxicola, and Puccinia buxi. McAllen Marketing Field Office, district in which the handler is an (2) For Ehretia microphylla: Marketing Order Administration inhabitant, or has his or her principal Macrophoma ehretia, Phakopsora Branch, Fruit and Vegetable Programs, place of business, has jurisdiction to ehretiae, Pseudocercosporella ehretiae, AMS, USDA, 1313 E. Hackberry, review USDA’s ruling on the petition, Pseudocercospora ehretiae-thyrsiflora, McAllen, Texas 78501; telephone: (956) provided an action is filed not later than Uncinula ehretiae, Uredo ehretiae, and 682–2833, Fax: (956) 682–5942; or 20 days after the date of the entry of the Uredo garanbiensis. George Kelhart, Technical Advisor, ruling. This rule decreases the assessment (3) For Podocarpus macrophyllus: Marketing Order Administration rate established for the Committee for Pestalosphaeria jinggangensis, Branch, Fruit and Vegetable Programs, the 2003–04 and subsequent fiscal Pestalotia diospyri, Phellinus noxius, AMS, USDA, 1400 Independence periods from $0.085 to $0.03 per 50- and Sphaerella podocarpi. Avenue, SW., STOP 0237, Washington, (4) For Sageretia thea: Aecidium pound equivalent of onions handled. DC 20250–0237; telephone: (202) 720– The South Texas onion marketing sageretiae. 2491, fax: (202) 720–8938. (5) For Serissa foetida: Melampsora order provides authority for the Small businesses may request Committee, with the approval of USDA, serissicola. information on complying with this (C) Growing. The artificially dwarfed to formulate an annual budget of regulation by contacting Jay Guerber, expenses and collect assessments from (penjing) plants must be grown in an Marketing Order Administration approved greenhouse for at least 6 handlers to administer the program. The Branch, Fruit and Vegetable Programs, members of the Committee are months immediately prior to export. AMS, USDA, 1400 Independence (D) Additional treatments. While in producers and handlers of South Texas Avenue, SW., STOP 0237, Washington, onions. They are familiar with the the greenhouse, plants must be treated DC 20250–0237; telephone: (202) 720– with appropriate pesticides at least once Committee’s needs and with the costs 2491, fax: (202) 720–8938, or e-mail: for goods and services in their local area every 10 days or as needed for three [email protected]. months before shipping to maintain a and are thus in a position to formulate pest-free condition. SUPPLEMENTARY INFORMATION: This rule an appropriate budget and assessment is issued under Marketing Agreement * * * * * rate. The assessment rate is formulated No. 143 and Order No. 959, both as and discussed in a public meeting. Done in Washington, DC, this 13th day of amended (7 CFR part 959), regulating Thus, all directly affected persons have January 2004. the handling of onions grown in South an opportunity to participate and Bobby R. Acord, Texas, hereinafter referred to as the provide input. Administrator, Animal and Plant Health ‘‘order.’’ The order is effective under the For the 2002–03 and subsequent fiscal Inspection Service. Agricultural Marketing Agreement Act periods, the Committee recommended, [FR Doc. 04–1066 Filed 1–15–04; 8:45 am] of 1937, as amended (7 U.S.C. 601–674), and USDA approved, an assessment rate BILLING CODE 3410–34–P hereinafter referred to as the ‘‘Act.’’ that would continue in effect from fiscal

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