Canada Gazette

The purpose of the Plant Protection Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of plant pests such as insects and diseases. Under the Act and its regulations, inspectors may order the treatment or disposition of plants to control or eradicate plant pests in cases where there are reasonable grounds to believe that a thing is a pest, is or could be infested, or constitutes or could constitute a biological obstacle to the control of a pest. The Act also permits the Minister of Agriculture and Agri-Food to order compensation to be paid from the Consolidated Revenue Fund in respect of any treatment, storage or disposition of a thing required under it or the Plant Protection Regulations. Finally, the Act permits the making of regulations, including those prescribing the terms and conditions on which compensation may be ordered and the maximum levels of compensation.

Phytophthora ramorum (P. ramorum) is the organism that causes Sudden Oak Death (SOD), a serious disease of oaks and other woody and herbaceous plants. Thousands of tan oaks and other oak species have been killed by this disease in California since the mid 1990s. Mortality has also been reported in arbutus, beech, rhododendron, Vaccinium and Viburnum. These plants and others may also exhibit symptoms such as dieback, wilting, and lesions and may play an important role in the spread of the pathogen, both by natural movement in the environment and by the movement of infected plant material via the nursery trade.

SOD has caused great economic hardship for nursery and landscape businesses in those regions where it has become established. For example, in 2001, Canada closed its markets to most plant crops from the states of Oregon and California. Without reopened market access, Oregon nurseries alone faced losses in sales to Canada of $15 to $20 million.

A pest risk assessment was completed by the Plant Health Risk Assessment Unit of the Canadian Food Inspection Agency (CFIA) in March 2002 and was updated in June 2005. This assessment concluded that if P. ramorum were introduced, the disease could have a significant impact on Canada's forest resources and landscape. The pest risk assessment indicates that plants, plant parts, soil and growing media play a role in the movement and dispersal of P. ramorum. Laboratory studies have demonstrated that the disease has the capacity to spread to many oak species, including those growing in Canada. Oak and other related species are a significant component in the Great Lakes-St. Lawrence and Acadian Forest Regions of Canada, are valuable as shade trees in urban areas and parks and are a critical habitat providing food and shelter for wildlife. Wood from oak trees is an important resource for the production of furniture and flooring for use both in Canada and overseas. Rhododendrons, azaleas, camellias, and other ornamental hosts are important landscape plants in Canada and represent a significant portion of the total of the horticulture crops produced. The CFIA Pest Risk Assessment identifies rhododendron, including azalea, Pieris, Viburnum, and Kalmia, as high-risk nursery host plants. Other SOD host species are significant components of forest ecosystems, of commercial forestry seedling nurseries, of small fruit and nut production, and of the lumber industry (both domestic and export).

On March 11, 2004, the United States Department of Agriculture (USDA) informed the CFIA that camellia plants infected with SOD had been found at a nursery in California. The CFIA immediately implemented emergency quarantine measures to prevent the entry of any shipments of plants known to be susceptible to SOD from California. The CFIA also took immediate action to prevent the spread of the disease in Canada, including the quarantine and destruction of imported plants and the sampling of plant material from Canadian nurseries and garden centres that imported and/or received plants from the affected nursery in California.

On March 31, 2004, the CFIA confirmed the presence of P. ramorum in California-origin plant material at nine retail garden centres in the south coastal area of British Columbia. Although this represents a small percentage of all garden centres in British Columbia, if P. ramorum were allowed to spread unimpeded, it would have devastating economic consequences on the entire British Columbia landscape and nursery industry. The value of the nursery and floriculture sectors of British Columbia is estimated at $500 million, with approximately $170 million in export sales to the United States. Additionally, there could be impacts on Canada's conifer log exports to Asian countries. The value of export sales of conifer logs to these markets in 2005 was more than $150 million.

From April to June 2004, a public recall in British Columbia involving the CFIA and the British Columbia Landscape and Nursery Association (BCLNA) resulted in the recovery of approximately 1 400 camellias and identified ten homeowners with infected plants. National survey activities identified an additional five nurseries and three homeowners with infected plants in south coastal British Columbia. Plants that tested positive for P. ramorum and any adjacent host plants were also destroyed.

In 2005, the National (detection) Survey, conducted from June to September, focused on nurseries that had imported host material from California, Oregon and the European Union within the previous six years. At each of these sites, up to 30 samples from plants showing symptoms consistent with P. ramorum infection were collected and submitted for analysis to the CFIA Centre for Plant Quarantine Pests in Ottawa. P. ramorum was not detected during the National Survey, but two sites in British Columbia were found to be positive during the trace-back and trace-forward activities in 2005.

In cases where plants and plant material are found to be infected, the CFIA has issued Notices to affected individuals to eradicate infected plants and plant materials. The intent of the CFIA eradication actions is to prevent the spread of SOD to other areas of the province and Canada and to eventually eliminate the disease in the British Columbia south coastal area.

The compensation provided in these Regulations complements financial assistance through the Canadian Agriculture Income Stabilization (CAIS) Program to producers (five wholesale nurseries).

Further, these Regulations would provide compensation to those retail nurseries and landscaped sites (non-producers) who have complied with control measures ordered by the CFIA under the Plant Protection Act.

It is anticipated that these Regulations will be viewed favourably, as numerous requests have been made by provincial governments and industry stakeholders since 2003.

The total amount of compensation that could be paid out under these Regulations is estimated to be $16.5 million. This figure was determined using 2005 plant values at wholesale nurseries. Should other positive sites be identified through surveillance activities, an additional $3.5 to $8 million may be required. Additional costs for administering the compensation program will be absorbed by the CFIA.

The main benefit of the proposed compensation is to support the implementation of the eradication measures by providing funds for the disposal of host plants and plant material. Eradication of this disease cannot be accomplished without destroying infected plant material and other at-risk plants. If allowed to continue to spread, SOD would have a devastating economic effect on the British Columbia nursery industry and would risk spreading to other regions of the province and Canada. The value of the British Columbia nursery and floriculture sectors is estimated at $500 million, with approximately $170 million in export sales to the United States. Additionally, there could be impacts on Canada's conifer log exports to Asian countries. The value of export sales of conifer logs to these markets in 2005 was more than $150 million.

Since the discovery of SOD in British Columbia, extensive consultation on all aspects of the eradication programs (including the compensation components) has been ongoing with industry stakeholders, including the BCLNA and the Canadian Landscape and Nursery Association, nursery operators and affected individuals. These groups have been key partners with the CFIA in its efforts to prevent the spread of SOD to other parts of Canada and support compensation being offered to affected individuals and companies. In addition, provincial governments in British Columbia and Ontario have been supportive of the eradication efforts and compensation.

Compliance will be obtained through a thorough review of applications received and the recovery of funds if applicants are found to be ineligible for compensation.

Greg Stubbings, Director, Plant Health Division, Canadian Food Inspection Agency, 59 Camelot Drive, Ottawa, Ontario K1A 0Y9, 6l3-221-4316 (telephone), 613-228-6606 (fax).

Notice is hereby given that the Governor in Council, pursuant to paragraph 47(q) of the Plant Protection Act (see footnote a), proposes to make the annexed Phytophthora Ramorum Compensation Regulations.

Interested persons may make representations with respect to the proposed Regulations within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Greg Stubbings, Director, Plant Health Division, Canadian Food Inspection Agency, 59 Camelot Drive, Ottawa, Ontario K1A 0Y9 (tel.: 613-221-4316; fax: 613-228-6606; e-mail: g.stubbings@inspection.gc.ca).

"disposition and treatment costs" means any direct costs related to the disposition of plants and any treatment in accordance with a notice referred to in subsection 2(1), including direct costs related to the disposition or treatment of soil, pots and debris, the rental of bins, equipment or vehicles for hauling and disposal, the purchase or rental of supplies to contain and disinfect materials and equipment, and labour costs. (coûts de disposition et de traitement)

"non-host plant" means a plant that is not a host for Phytophthora ramorum. (végétaux non-hôtes)

2. (1) Subject to subsection (2), the Minister may order that compensation be paid under subsection 39(1) of the Plant Protection Act to a person who has received a notice, issued by an inspector under that Act or the Plant Protection Regulations during the period beginning on January 1, 2003 and ending on December 31, 2008, to dispose of one or more plants or carry out treatment as a result of the presence of Phytophthora ramorum, if the person

(a) owned or had possession, care or control of the plants, at the time the person received the notice;

(d) submits an application for compensation to the Minister no later than December 31, 2009.

(2) No compensation shall be paid for any portion of a loss referred to in paragraph (1)(b) for which compensation has been paid under these Regulations or has been paid or is payable under

(3) No compensation shall be paid in respect of losses referred to in paragraph (1)(b) if the plant that is purchased to replace the plant disposed of is, at the time of purchase, a plant that is a host for Phytophthora ramorum.

(4) No compensation shall be paid in respect of any plant disposed of that was, at the time that it was disposed of, in any of the following locations:

(a) natural or wild areas, other than land used for woodlots, parks, sportsfields, recreation trails or similar recreational areas, golf courses, education institutions or hospitals;

3. (1) The amount of compensation to be paid to a person for a loss referred to in paragraph 2(1)(b) shall not exceed

(a) for a plant included in the inventory of a business that sells plants at the wholesale or retail level

(i) the value of the plant to the maximum amount set out in column 2 for its size or its container size, and

(ii) the disposition and treatment costs, if any, related to that plant; and

(i) the direct costs incurred by the person to replace the plant disposed of with a non-host plant, including the cost of acquiring the non-host plant, to a maximum of

(A) $4 per plant disposed of for plants having a container size of less than 1 gallon,

(B) $15 per plant disposed of for plants having a container size greater than or equal to 1 gallon but less than 5 gallons,

(D) $300 per tree disposed of for trees greater than 7.6 centimetres calliper size, and

(ii) the disposition and treatment costs, if any, related to that plant.

(2) The amount of compensation payable to any given person for disposition and treatment costs relating to one or more plants shall not exceed $1,200,000.

4. (1) An application for compensation must be on a form provided by the Minister and signed by the applicant and must include the following information and documents, together with any other information and documents that are necessary for the Minister to determine whether the application meets the requirements of these Regulations:

(a) the applicant's name, address and telephone number and, if any, facsimile number and e-mail address;

(b) if applicable, evidence to substantiate that a plant was included in the inventory of a business that sells plants at the wholesale or retail level;

(c) evidence to substantiate the number of plants required to be disposed of and their genus or genera, and their container or calliper size, as the case may be;

(d) copies of all documents received by the applicant that relate to the disposition of the plants and treatment;

(e) evidence to substantiate the costs incurred by the applicant for the disposition and replacement of the plants and treatment;

(f) if applicable, evidence indicating any compensation that the applicant has received under any other program, measure or contract referred to in subsection 2(2); and

(g) a description of the measures that the applicant has taken to mitigate the loss.

(2) An applicant may amend an application for compensation at any time before the day referred to in paragraph 2(1)(d).

(3) An applicant may submit or amend an application after the day referred to in paragraph 2(1)(d) if

(a) there were exceptional circumstances beyond the applicant's control that prevented the applicant from submitting or amending the application before that day; and

(b) the application is submitted or amended within 14 days after the day on which those circumstances cease to exist.

5. The payment of compensation ordered in accordance with these Regulations is subject to the following conditions:

(a) the applicant must keep books and records, accompanied by supporting documents, that are necessary to substantiate the information contained in the application for three years after the day on which the application is made; and

(b) the applicant must make those books, records and supporting documents available on request, within the period during which they must be kept, for inspection or audit.