[Federal Register Volume 66, Number 77 (Friday, April 20, 2001)]
[Proposed Rules]
[Pages 20208-20211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9792]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 00-042-1]


Importation of Artificially Dwarfed Plants

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations for importing plants 
and plant products by requiring artificially dwarfed plants that are 
imported into the United States to have been grown under certain 
conditions in nurseries registered with the government of the country 
where the plants were grown. We are proposing this action to protect 
against the introduction of longhorned beetles and other dangerous 
plant pests into the United States.

DATES: We invite you to comment on this docket. We will consider all 
comments that we receive by June 19, 2001.

ADDRESSES: Please send four copies of your comment (an original and 
three copies) to: Docket No. 00-042-1, Regulatory Analysis and 
Development, PPD, APHIS, Suite 3C03, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238.
    Please state that your comment refers to Docket No. 00-042-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room 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.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. Gadh, Import Specialist, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of certain plants and plant products into the United States 
to prevent the introduction of plant pests. The regulations contained 
in ``Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other 
Plant Products,'' Secs. 319.37 through 319.37-14 (referred to below as 
the regulations), restrict, among other things, the importation of 
living plants, plant parts, and seeds for propagation.
    Under Sec. 319.37-2(b)(2) of the regulations, the importation from 
all foreign places except Canada of any naturally dwarf or miniature 
form of

[[Page 20209]]

tree or shrub exceeding 305 millimeters (approximately 12 inches) in 
length from the soil line is prohibited, unless the plants are imported 
by the U.S. Department of Agriculture for experimental or scientific 
purposes in accordance with Sec. 319.37-2(c). Because the regulations 
do not explicitly prohibit the importation of naturally dwarf plants 
under 305 millimeters in length or artificially dwarfed plants, and 
because the regulations do not contain restrictions particular to their 
importation, such plants may be imported into the United States if they 
are accompanied by a phytosanitary certificate of inspection. Such 
plants are also subject to inspection and, if necessary, treatment for 
plant pests, at the port of first arrival in the United States.
    The volume of artificially dwarfed and other dwarf plants imported 
into the United States has increased dramatically in recent years, from 
fewer than 600 plants in 1993 to 54,749 plants in 1998. Because of the 
increasing numbers of harmful pests found in artificially dwarfed 
plants imported into the United States, we believe that many of these 
plants may be field-collected plants that are produced quickly in their 
country of origin for mass export. These plants include species that, 
historically, have not been imported as artificially dwarfed plants and 
that may not be given the same meticulous care and safeguards as 
traditional artificially dwarfed plants such as bonsai and penjing.
    In April 1999, adults and larvae of citrus longhorned beetle (CLB), 
Anoplophora chinensis (Forester), were found on several occasions in a 
greenhouse housing artificially dwarfed plants imported from the 
People's Republic of China. The beetles were observed emerging from 
infested artificially dwarfed plants and moving throughout the 
greenhouse. Two months later, another beetle, the white spotted 
longhorned beetle (WSLB), Anoplophora malasiaca (Thomson), was 
discovered in a nursery and was traced to an artificially dwarfed plant 
imported from the Republic of Korea. Both CLB and WSLB are considered 
dangerous orchard pests in their native countries and can infest and 
kill a wide variety of hardwood trees, including apple, pear, and 
citrus.
    In June 1999, APHIS inspectors intercepted an unidentified 
longhorned beetle in Miami, FL, during an intensive inspection of 
artificially dwarfed wisteria plants from the People's Republic of 
China. Another longhorned beetle, Chlorophorus diademus (Motschulsky), 
was intercepted in August 1999 in an artificially dwarfed plant seized 
by APHIS inspectors in San Francisco, CA. The plant, identified as 
Styrax spp., was imported from the People's Republic of China, where 
the beetle is considered a harmful pest of cherry trees.
    In this document, we are proposing to add new requirements for 
importing artificially dwarfed plants into the United States to guard 
against the introduction of plant pests, including those mentioned 
above, into the United States. We are not proposing to restrict the 
importation of naturally dwarf plants under 305 millimeters in length 
in this document because we do not believe those plants present a 
significant pest risk. Further, naturally dwarf plants under 305 
millimeters in length are subject to inspection upon arrival and, if 
pests are detected, treatment.
    If this proposed rule is adopted, any growing media would be 
required to be removed from the artificially dwarfed plants prior to 
shipment to the United States, unless the plants are to be imported in 
accordance with the regulations in Sec. 319.37-8. Under current 
regulations, all imported nursery stock is subject to this requirement 
except plants that are imported under the regulations in Sec. 319.37-8. 
The proposed requirement would help to further ensure that soil-borne 
pests do not accompany the plants to the United States.
    Under this proposed rule, plants would also need to meet the 
following requirements in order to be eligible for importation into the 
United States:
    (1) The artificially dwarfed plants must be grown for at least 2 
years in a nursery that is registered with the government of the 
country where the plants were grown.
    This proposed requirement, which mirrors requirements maintained by 
the European Union, would help to ensure that artificially dwarfed 
plants have been grown in nurseries that have adequate phytosanitary 
measures in place to guard against the infestation of plants by 
longhorned beetles and other dangerous plant pests. We believe that 
nurseries provide a higher degree of pest protection for such plants 
than do open fields and other areas because nurseries are routinely 
cleaned and kept free of debris, and the plants contained in nurseries 
are regularly observed for signs of pest infestation. This requirement 
would prevent the importation of plants that are harvested from open 
fields and that present a higher risk of pest infestation.
    (2) The artificially dwarfed plants must be grown in pots 
containing only sterile growing media during the 2-year period when 
they were grown in the registered nursery.
    This proposed requirement would help to ensure against infestation 
of artificially dwarfed plants by harmful soil-borne plant pests such 
as nematodes. Plants that are potted and grown in sterile growing media 
have been shown to present less of a risk of pest infestation because 
the use of sterile growing media helps to preclude the possibility that 
growing media could be a source of pest infestation.
    (3) The artificially dwarfed plants must be grown on benches at 
least 50 cm above the ground.
    Research conducted by the United Kingdom has shown that plants that 
are grown in pots placed on benches at least 50 cm above the ground are 
less likely to be attacked by plant pests than plants grown on the 
ground because they are less accessible to pests. The European Union, 
based on this research, also maintains this same requirement for 
imported artificially dwarfed plants.
    (4) The plants and the nursery where they were 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 
were grown.
    This proposed requirement would provide added assurance that 
nurseries growing artificially dwarfed plants have adequate 
phytosanitary measures in place to protect against the infestation of 
plants by longhorned beetles and other plant pests.
    In order to verify that these conditions are met in the country 
where the plants were grown, all artificially dwarfed plants imported 
into the United States would be required to be accompanied by a 
phytosanitary certificate of inspection issued by the government of the 
country where the plants were grown. The phytosanitary certificate 
would have to contain declarations that each of the above four 
conditions have been met.
    We believe that the above conditions would provide adequate 
protection against imported artificially dwarfed plants introducing 
pests into the United States.
    In conjunction with the above changes, we are also proposing to 
amend Sec. 319.37-2 to make it clear that artificially dwarfed plants 
must be imported in accordance with the proposed regulations in 
Sec. 319.37-5(q).

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule

[[Page 20210]]

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.
    This proposed rule would require imported artificially dwarfed 
plants to be free of growing media and accompanied by a phytosanitary 
certificate of inspection issued by the government of the country where 
the plants were grown, verifying that the following conditions have 
been met:
     The plants were grown for 2 years prior to shipment to the 
United States in nurseries registered with the government of the 
country where the plants were grown;
     The plants were grown in pots containing sterile growing 
media and grown on benches at least 50 cm above the ground; and
     The plants and the nurseries were inspected at least once 
every 12 months by the plant protection service of the country of 
export and found free of pests of quarantine significance to the United 
States.
    The proposal is intended to prevent the introduction of longhorned 
beetles and other dangerous plant pests into the United States. Recent 
studies have shown that the production losses that could result from a 
widespread Asian longhorned beetle infestation in the United States 
could total in excess of $27.4 billion.
    The art of miniature (or artificially dwarfed) plant gardening is a 
recent phenomenon in the United States. Because it is a highly time 
consuming and very labor intensive activity, it is practiced by a 
relatively small number of U.S. nurserymen and households. The size of 
these artificially dwarfed plants range from 4 inches to 60 inches in 
height, with prices ranging from $10 to more than $10,000. The median 
price of an artificially dwarfed plant is close to $100, and its value 
increases with age, regardless of size.
    According to a market expert, 80 percent of the value of this 
market corresponds to the plants that have been imported from Asia. 
Such imports come predominantly from Japan, the People's Republic of 
China, and Korea. The remaining 20 percent corresponds to plants that 
have been domestically produced. With respect to volume, 20 percent of 
the artificially dwarfed plants available in the U.S. market are 
imported from Asia, and the rest are domestically produced. 
Domestically produced artificially dwarfed plants are the smallest, 
simplest, and most inexpensive ones. Plants produced in and imported 
from Asian countries are the largest, most elaborate, and most 
expensive.
    In 1997, the U.S. National Arboretum in Washington, DC, surveyed 
U.S. nurseries that sell artificially dwarfed plants, as well as other 
businesses related to the growing of artificially dwarfed plants. A 
summary of this survey's findings was published in the American 
Nurseryman Magazine in April 1999. According to that survey, in 1997, 
there were at least 366 artificially dwarfed plant-related businesses 
in the United States. Based on that survey, artificially dwarfed plant 
businesses can be divided into two categories: Full-service nurseries 
and specialty companies focusing on one product.
    Full-service nurseries may carry a wide range of artificially 
dwarfed plants in varying sizes, including some that they have 
developed themselves and others they have purchased or have imported 
from Asia. Many of these businesses also sell pots for these plants, as 
well as related tools and books. On the other hand, specialty companies 
may produce one product, such as plants, pots, or tools, or may be 
limited to teaching or publishing.
    The survey identified 97 full service artificially dwarfed plant 
nurseries (see table below). These entities range from relatively small 
family-owned and family-operated enterprises to a few large companies.

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                                                              No. of
                     Type of company                         companies
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Full service artificially dwarfed plant nurseries.......              97
Specialty artificially dwarfed plant related companies:
  Plants (including seeds)..............................              82
  Tools, supplies, stands...............................              81
  Containers and pots...................................              46
  Magazines, books, and newsletters.....................              32
  Consultants and teachers..............................              28
                                                         ---------------
    Total...............................................             366
------------------------------------------------------------------------

    The 1997 survey found that artificially dwarfed plant-related 
businesses are fairly well-distributed throughout the United States. 
However, the largest concentrations are in the Southeast (107) and the 
Southwest (102), including California. The Northeast has 84 
artificially dwarfed plant related businesses. The Midwest has 37 
related businesses, and the Northwest has 26.

Effect on Small Entities

    According to Small Business Administration (SBA) guidelines, a 
small business involved in the sale or importation of artificially 
dwarfed plants or related products is one having either less than 
$500,000 of annual receipts from sales or less than 100 employees.
    According to two industry experts on artificially dwarfed plants, 
there are between 20 to 50 importers of these plants in the United 
States, with the number varying each year. However, on average, this 
number is closer to 20. All of them can be considered small entities 
according to the SBA definition. We do not expect that this proposed 
rule, if adopted, would significantly affect the price of imported 
artificially dwarfed plants or that the proposed rule would have a 
significant effect on importers of artificially dwarfed plants.
    Most of the businesses engaged in the production and distribution 
of artificially dwarfed plants and related materials are family owned 
and operated. Approximately 99 percent of these firms are considered 
small according to SBA criteria. There is no reason to believe that 
these entities would be significantly affected by implementation of 
this rule because the price of imported artificially dwarfed plants is 
not expected to change significantly.
    The proposed requirement that imported artificially dwarfed plants 
be grown in registered nurseries--and not collected from open fields--
could be expected to affect the number of artificially dwarfed plants 
imported during the short term. Plants imported from Asia are 
predominantly higher valued and nursery-grown, and comprise only 20 
percent of U.S. sales by quantity, but 80 percent of sales by value. 
This proposed rule, if adopted, would likely not have a significant 
effect on the number of higher valued plants imported from Asia. 
However, since artificially dwarfed plants that are not grown in 
accordance with the conditions in this rule would be prohibited 
importation into the United States, it is possible that some U.S. 
producers could benefit from decreased competition. Nevertheless, the 
effect of this proposed rule on those nurseries is expected to be 
insignificant, given the small number of affected imports.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no

[[Page 20211]]

retroactive effect will be given to this rule; and (3) administrative 
proceedings will not be required before parties may file suit in court 
challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 00-042-1. 
Please send a copy of your comments to: (1) Docket No. 00-042-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., 
Washington, DC 20250. A comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication of this 
proposed rule.
    This proposed rule would require all artificially dwarfed plants 
imported into the United States to be accompanied by a phytosanitary 
certificate issued by the government of the country of origin. This 
certificate must contain declarations that certain conditions were met 
in the country of origin to protect against the infestation of the 
plants by plant pests.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average .25 hours per response.
    Respondents: Plant health officials of exporting countries.
    Estimated number of respondents: 20.
    Estimated number of responses per respondent: 5.
    Estimated annual number of responses: 100.
    Estimated total annual burden on respondents: 25 hours.
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would be revised to read as 
follows:

    Authority: Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 
7701-7772; 7 U.S.C. 166 and 450; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 
2.80, and 371.3.

    2. Section 319.37-2 would be amended as follows:


Sec. 319.37--2  [Amended]

    a. In paragraph (b)(1), by removing the words ``trees or shrubs'' 
and adding in their place the words ``plants meeting the conditions in 
Sec. 319.37-5(q)''.
    b. In paragraph (b)(6)(i), by removing the words ``such as bonsai'' 
and adding in their place the words ``meeting the conditions in 
Sec. 319.37-5(q)''.
    c. In paragraph (b)(7), by removing the words ``tree or shrub'' the 
second time it appears and adding in their place the words ``plant 
meeting the conditions in Sec. 319.37-5(q)''.
    2. In Sec. 319.37-5, a new paragraph (q) would be added to read as 
follows:


Sec. 319.37-5  Special foreign inspection and certification 
requirements.

* * * * *
    (q) Any artificially dwarfed plant imported into the United States 
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.
    (1) Any growing media, including soil, must be removed from the 
artificially dwarfed plants prior to shipment to the United States 
unless the plants are to be imported in accordance with Sec. 319.37-8.
    (2) The phytosanitary certificate accompanying artificially dwarfed 
plants must contain declarations that the following requirements have 
been met in the country where the plants were grown:
    (i) The artificially dwarfed plants were grown for at least 2 years 
in a nursery registered with the government of the country where the 
plants were grown;
    (ii) The artificially dwarfed plants were grown in pots containing 
only sterile growing media during the 2-year period when they were 
grown in a registered nursery;
    (iii) The artificially dwarfed plants were grown on benches at 
least 50 cm above the ground; and
    (iv) The plants and the nursery where they were grown were 
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 
were grown.
* * * * *

    Done in Washington, DC, this 16th day of April 2001.
Bobby R. Acord,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 01-9792 Filed 4-19-01; 8:45 am]
BILLING CODE 3410-34-U