Title of Regulation: 2VAC5-321. Regulation of the Harvest and Purchase of Wild Ginseng (adding 2VAC5-321-10 through 2VAC5-321-50).

Statutory Authority: § 3.2-1002 of the Code of Virginia.

Public Hearing Information:

March 28, 2013 - 10 a.m. - Board of Agriculture and Consumer Services, 102 Governor Street, 2nd Floor Board Room, Richmond, VA

Public Comment Deadline: April 26, 2013.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 3.2-1002 of the Code of Virginia authorizes the board to adopt regulations including the listing of threatened or endangered plant and insect species, their taking, quotas, seasons, buying, selling, possessing, monitoring of movement, investigating, or protecting. This authority is discretionary.

Section 3.2-1007 of the Code of Virginia declares that Panax quinquefolious L., commonly referred to as ginseng, is a threatened plant species when it occurs in the wild.

Purpose: In September 2010, the U.S. Fish and Wildlife Service notified the Virginia Department of Agriculture and Consumer Services that current practices governing the harvest and sale of ginseng in Virginia were inadequate to ensure the continued survival of the species. The U.S. Fish and Wildlife Service encouraged the Virginia Department of Agriculture and Consumer Services to pursue regulatory changes that would assist in ensuring the survival of the species in the wild. If the U.S. Fish and Wildlife Service is unable to determine that the harvest of wild ginseng root in Virginia is not detrimental to the survival of the species, the U.S. Fish and Wildlife Service may not continue to allow the export of ginseng from Virginia. Ginseng revenue is often supplemental income for those individuals who harvest wild ginseng.

The Virginia Department of Agriculture and Consumer Services believes that the science-based requirements in the proposed regulation will assist in ensuring the long-term survival of wild ginseng in the Commonwealth, while at the same time facilitating the continued commercial trade of this valuable plant export. As these regulations will facilitate the continued commercial trade of wild ginseng, they will, thereby, assist in protecting the welfare of those citizens who rely on ginseng revenue for supplemental income.

Substance: This regulation (i) allows only the harvest of wild ginseng that is five years of age or older; (ii) establishes an annual harvest season from September 1 through December 31 of each year for wild ginseng; (iii) requires harvesters to plant ginseng fruit at the harvest site; and (iv) establishes a purchase season for licensed dealers of September 1 through January 14 for uncertified green wild ginseng root and September 15 through March 31 for uncertified dry wild ginseng root.

Issues: The primary advantage of the proposed regulation to both the public and the Commonwealth is the long-term survival of wild ginseng. Additionally, those involved in the harvest and export of wild ginseng will benefit from the continued finding by the U.S. Fish and Wildlife Service that the export of wild ginseng from the Commonwealth is not detrimental to the survival of the species. The U.S. Fish and Wildlife Service has expressed concern that without this regulation, it may not be able to continue to issue a nondetriment finding for the export of ginseng from Virginia, which would result in a prohibition on the export of ginseng from Virginia and effectively stop the harvest of this plant for commercial purposes. A conservative estimate of the annual value of ginseng exported from Virginia is approximately $1.5 million.

One of the U.S. Fish and Wildlife Service's concerns is that year-round harvest is permissible on private property in Virginia. The Endangered Plant and Insect Species Act does not give the board authority to regulate the activities of a property owner related to endangered plant and insect species on the property owner's land. In an effort to address the U.S. Fish and Wildlife Service concerns, the proposed regulation establishes conditions governing a licensed dealers purchase of uncertified wild ginseng. The restriction on the purchase of uncertified wild ginseng will encourage private landowners to delay harvesting ginseng from their land until September, when the ginseng fruit has ripened. This, in turn, will assist in ensuring the survival of the species on private property.

Virginia Department of Agriculture and Consumer Services ginseng harvest data from 2000 to 2009 indicates that only approximately 1.0% of ginseng was sold by property owners prior to the start of the current harvest season (August 15). The change in the harvest season and the implementation of a buying season for licensed dealers will have little effect on landowners or other individuals involved in commercial trade of ginseng.

This regulatory action poses no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Regulation. The Virginia Board of Agriculture and Consumer Services (Board) proposes to promulgate new regulations to regulate the harvest and purchase of wild ginseng.

Result of Analysis. Benefits likely outweigh costs for these proposed regulations.

Estimated Economic Impact. Prior to 2008, the General Assembly set dates for the harvest of wild ginseng and allowed such harvest between August 15th and December 31st of each year. In 2008, the General Assembly passed § 3.2-1007 which declares wild ginseng a threatened species and allows the Board to set dates for the harvest of wild ginseng. As allowed by that legislation, the Board now proposes to set this harvest season to begin on September 1st and end on December 31st each year. The Board proposes a slightly smaller harvest window than was allowed by the legislature on the advice of the federal Fish and Wildlife Service which believes that the modified dates will allow wild ginseng to fully fruit and therefore allow the propagation of the plants that are being harvested. The Board also proposes to require that people may not harvest wild ginseng that 1) is younger than five years of age or 2) has fewer than four stem scars on its rhizome or 3) has fewer than three prongs. Harvesters will also have to plant the seeds of the harvested plants at the harvest site and at the time the plant is harvested. These proposed requirements will provide a benefit to both harvesters and buyers of wild ginseng as they will require behavior that will better ensure the survival of this species on public land where no individual has either the incentive to limit his own harvest to certain times of year, because anything not harvested by him might be lost to another harvester, or to replant the seeds of the wild ginseng, because he might not be able to recoup the value of his time and effort if someone else gets to harvest the fruits of that replanting. Harvesters will incur whatever costs would be associated with a harvest season that is two weeks shorter than they currently enjoy.

These rules will not apply to individuals who are harvesting wild ginseng on their own property or to individuals who, pursuant to § 3.2-1004 of the Code of Virginia, have a permit from the Commissioner of the Virginia Department of Agriculture and Consumer Services (VDACS) for the buying or selling of wild ginseng for scientific, biological, or educational purposes or for propagation to ensure their survival.

The Board also proposes to limit dealers to purchasing wild ginseng not certified by the Board. Under these proposed regulations, dealers may only buy green uncertified wild ginseng from September 1st to January 14th of each year and may only purchase dry uncertified wild ginseng root from September 15th of each year to March 31st of the following year. These proposals will help ensure that dealers licensed by the Board will likely not be buying wild ginseng that was illegally harvested and will also encourage private land owners not to harvest wild ginseng until it has a chance to fruit and reseed. Licensed dealers will incur whatever costs would be associated with a buying season for wild ginseng that has not been certified by VDACS that is shorter than what they currently enjoy.

Businesses and Entities Affected. VDACS reports that these regulations will affect all 50 licensed wild ginseng dealers in the Commonwealth as well as all harvesters of wild ginseng.

Localities Particularly Affected. No locality is likely to be particularly affected by these proposed regulations.

Projected Impact on Employment. There is currently insufficient information to project the impact that these proposed regulations may have on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulations are unlikely to affect the use or value of private property.

Small Businesses: Costs and Other Effects. Licensed dealers, who are all small businesses, will incur whatever costs would be associated with a buying season for wild ginseng that has not been certified by VDACS that is shorter than what they currently enjoy.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is likely no alternate method for meeting VDACS goals that would further minimize costs.

Real Estate Development Costs. These proposed regulations are unlikely to affect real estate development.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed regulation (i) allows the harvest of wild ginseng that is five years of age or older; (ii) establishes an annual harvest season from September 1 to December 31; (iii) requires harvesters to plant wild ginseng fruit at the harvest site; and (iv) establishes a purchase season for licensed dealers of September 1 to January 14 for uncertified green wild ginseng root and September 15 to March 31 for uncertified dry wild ginseng root.

CHAPTER 321
REGULATION OF THE HARVEST AND PURCHASE OF WILD GINSENG

2VAC5-321-10. Definitions.

The following words and terms shall have the following meaning unless the context clearly indicates otherwise:

"Artificially propagated" means cultivated, woodsgrown, or any other method of producing ginseng under controlled conditions that include, but are not limited to, tillage, fertilization, and pesticide application.

"Certified wild ginseng" means wild ginseng for which the department has issued a Ginseng Inspection Certificate.

"Cultivated" means purposefully planted in beds under artificial shade using standard horticultural practices such as mechanical tillage, fertilization, weed control, irrigation, and pesticides.

"Dealer" means a person licensed by the department pursuant to § 3.2-1007 of the Code of Virginia to buy or otherwise accept wild ginseng or parts thereof for resale.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Prong" means a leaf with five leaflets.

"Rhizome" means a horizontal plant stem with shoots above and roots below.

"Uncertified dry wild ginseng root" means wild ginseng root that contains no moisture or that lacks sufficient moisture to remain viable and for which the department has not issued a Ginseng Inspection Certificate.

"Uncertified green wild ginseng root" means wild ginseng root that contains sufficient moisture to be viable and for which the department has not issued a Ginseng Inspection Certificate.

"Wild ginseng" means American ginseng, Panax quinquefolius L., that is grown with minimal human interference and is not artificially propagated.

"Woodsgrown" means purposefully planted in beds prepared in the woods in a manner that uses trees to provide necessary shade and may be grown with the use of chemical or mechanical weed, disease, or pest control agents.

2VAC5-321-20. Regulated articles.

The plant and plant parts of wild ginseng in any life stage are regulated under the provisions of this chapter.

2VAC5-321-30. Conditions governing the harvest of wild ginseng.

A. The harvest season for wild ginseng begins on September 1 and ends on December 31 of each year.

B. A person may not harvest wild ginseng from January 1 through August 31 of each year.

C. A person may not harvest wild ginseng that:

1. Is younger than five years of age;

2. Has fewer than four stem scars present on its rhizome; or

3. Has fewer than three prongs.

D. A person who harvests wild ginseng must plant the seeds of the harvested plant at the harvest site at the time of harvest.

2VAC5-321-40. Conditions governing the purchase of wild ginseng.

A. A dealer may purchase certified wild ginseng at any time throughout the year.

B. A dealer may only purchase uncertified green wild ginseng root from September 1 of each year through January 14 of the following year.

C. A dealer may only purchase uncertified dry wild ginseng root from September 15 of each year through March 31 of the following year.

2VAC5-321-50. Exceptions.

A. Pursuant to §§ 3.2-1003 and 3.2-1007 of the Code of Virginia, the provisions of this chapter do not apply to any person harvesting wild ginseng from his own land.

B. The provisions of this chapter do not apply to any person harvesting wild ginseng in accordance with a permit issued pursuant to § 3.2-1004 of the Code of Virginia.