Vol. 150, No. 9 — May 4, 2016

Registration

SOR/2016-71 April 15, 2016

PLANT PROTECTION ACT

Regulations Amending the Introduced Forest Pest Compensation Regulations

P.C. 2016-224 April 15, 2016

His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, pursuant to paragraph 47(1)(q) of the Plant Protection Act (see footnote a), makes the annexed Regulations Amending the Introduced Forest Pest Compensation Regulations.

Regulations Amending the Introduced Forest Pest Compensation Regulations

Amendments

1 The title of the Introduced Forest Pest Compensation Regulations (see footnote 1) is replaced by the following:

ASIAN LONG-HORNED BEETLE COMPENSATION REGULATIONS

2 The definitions host tree and infested in section 1 of the Regulations are replaced by the following:

host tree means any tree of the genera Acer, Aesculus, Albizia, Betula, Celtis, Cercidiphyllum, Koelreuteria, Platanus, Populus, Salix, Sorbus or Ulmus, that was or could have been infested or that constitutes or could have constituted a biological obstacle to the control of the Asian Long-horned Beetle (Anoplophora glabripennis). (arbre hôte)

infested, in respect of a host tree, means that the Asian Long-horned Beetle is present in the tree. (parasité)

3 (1) The portion of subsection 2(1) of the Regulations before paragraph (a) is replaced by the following:

2 (1) Subject to subsections (4) to (5), 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 the Plant Protection Regulations during the period beginning on April 1, 2013 and ending on March 31, 2019, to dispose of one or more host trees, if the person

(2) Paragraph 2(1)(b) of the Regulations is replaced by the following:

(3) Subsections 2(2) and (3) of the Regulations are repealed.

(4) Subsection 2(4) of the Regulations is replaced by the following:

(4) Compensation must not be paid in respect of a host tree that was disposed of if a host tree is planted to replace it in a place where host trees have been destroyed because they were or could have been infested or they constituted or could have constituted a biological obstacle to the control of the Asian Long-horned Beetle.

(5) The portion of subsection 2(5) of the English version of the Regulations before paragraph (a) is replaced by the following:

(5) Compensation must not be paid in respect of any host tree disposed of on any of the following:

4 The portion of section 3 of the English version of the Regulations before paragraph (a) is replaced by the following:

3 The compensation to be paid to a person for the loss of host trees referred to in paragraph 2(1)(a) is the equivalent of the direct costs incurred by the person to plant trees to replace the host trees that were disposed of, including the cost of acquiring the replacement trees, to a maximum amount of

5 The schedule to the Regulations is repealed.

Coming into Force

6 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The deadline for submitting an application for compensation under the Introduced Forest Pest Compensation Regulations (IFPCR), made pursuant to the Plant Protection Act (the Act), has expired. This means that affected landowners in the regulated area within the cities of Mississauga, Ontario and Toronto, Ontario, who received a notice to dispose with respect to affected trees on their property, resulting from a detection of infestation of the Asian longhorn beetle (a non-native forest pest) in August 2013 are not eligible for compensation. These persons have suffered similar losses to persons (tree owners) who had trees on their properties affected by this pest as a result of previous infestations of the pest. Not amending the IFPCR could also place at risk the pest management strategy of eradication for this invasive pest.

In addition, the scope of the IFPCR was no longer consistent with the Canadian Food Inspection Agency’s policy objectives and pest management strategy for emerald ash borer and brown spruce longhorn beetle. The Canadian Food Inspection Agency (CFIA) determined in 2005 that it was no longer effective to pursue eradication measures for emerald ash borer in 2005 and made a similar determination in 2006 with respect to brown spruce longhorn beetle; however, the IFPCR compensation provisions with respect to those two forest pests remained in force even though it was no longer possible to apply for such compensation.

Background

The IFPCR form part of the CFIA’s pest management strategy for controlling the spread of three non-native forest pests. The IFPCR set out the conditions for providing financial compensation, with some exceptions, to persons affected by tree removal that is undertaken by CFIA in response to pest detections of the brown spruce longhorn beetle (BSLB), the emerald ash borer (EAB), and the Asian longhorn beetle (ALHB).

The IFPCR were enacted in 2004, under the authority of the Act. Since the IFPCR were enacted, they have been updated three times to extend the deadline for filing an application for compensation when CFIA’s surveys identified additional trees that had been attacked by the three pests. The IFPCR were last amended in November 2009. The deadline for submitting an application for compensation under the former IFPCR was December 31, 2014, for persons who received a notice to dispose, from a Canadian Food Inspection Agency (CFIA) inspector, between May 1, 2000, and March 31, 2013.

The purpose of the Plant Protection Act (the Act) is to protect plant life (environment) and the agricultural and forestry sectors of the Canadian economy by preventing the import, export and spread of injurious plant pests (e.g. insects and diseases). The Act provides a legislative framework for undertaking measures to control and eradicate injurious plant pests.

When CFIA confirms the detection of a non-native pest affecting trees, it implements a pest management strategy, which involves surveying the area where a pest has been detected to determine the extent of the infestation. Depending on the results of the survey, one of the two following pest control strategies is employed. The first, eradication, consists of removing infested trees from a given area in order to render the infested area free from the pests. The second, containment or “slow-the-grow”, consists of removing only a limited number of infested trees in support of scientific research, with the intention to discover better detection and control tools in order to be able to eventually eliminate the pests.

Pursuant to subsection 15(3) of the Act, the Minister has the authority to declare an infested area as a regulated area by ministerial order and can impose restrictions on the movement of things within, into and out of the regulated area. Under section 39 of the Act, the Minister of Agriculture and Agri-Food may order compensation to be paid from the Government of Canada’s Consolidated Revenue Fund in support of eradication measures.

Once a regulated area is declared by ministerial order, notices of disposal (section 27, Plant Protection Regulations [PPR]) are issued and delivered by CFIA inspectors to landowners (which can include municipal and private landowners) with infested trees on their properties. Infested trees are removed and processed into a mulch-like product. This process kills any larvae and pests present in the material, rendering it safe for other uses. Surveys continue until there are five years of surveys with no new detections, which allows for a successful eradication to be declared. As part of establishing a regulated area, restrictions are imposed on the movement of nursery stock, trees, logs, lumber, wood, wood chips and bark chips from certain deciduous trees identified as hosts of the ALHB, EAB and BSLB and firewood of those species. Persons wishing to move host material within, into, or out of the regulated area are required to obtain a Domestic Movement Certificate from a CFIA inspector (PPR, Part III, section 45). Unless authorized by a Domestic Movement Certificate issued by the CFIA, the movement of host material out of the regulated area is prohibited. This measure supports the prevention of the spread.

The IFPCR specifically provides for compensation to persons who destroyed trees as a result of receiving a notice to dispose issued by a CFIA inspector. Those persons must submit an application for compensation before the deadline set out in the IFPCR. Among other things, compensation is designed to provide for the replanting of trees in affected areas.

The three forest pests
(i) Asian longhorn beetle

The ALHB is an invasive alien species, native to Asia, known to kill healthy trees. Broadleaf trees, which include all species of maples, along with elm, poplars, alder and willow, are at risk from this insect. It is an aggressive pest that could potentially devastate Ontario’s and Quebec’s hardwood forests, the hardwood urban landscape trees and the maple industry should it become established. ALHB is recognized by the international plant health community as a significant invasive insect. While the insect presents no threat to public health, it poses a significant risk to Canada’s trees and forests.

The ALHB has no natural controls in North America to prevent its spread. This pest is not only a concern in Canada, but is also a concern in the United States. The ALHB was detected for the first time in North America in New York City (1996) and subsequently in Chicago (1998) and New Jersey (2002 and 2004). All infestations in the United States are under official eradication by the United States Department of Agriculture (USDA). Millions of dollars have been spent by the United States to eradicate the ALHB.

The primary method of control of the ALHB is an aggressive campaign to control and eradicate the pest through the establishment of quarantine areas to prevent the movement of untreated host material out of the infested area and through the removal, destruction and disposal of infested trees. This eradication method was recommended for use in Canada by the ALHB Science Committee, which is made up of scientists from various government departments and academia from across Canada and the United States (U.S.). The method has also been effective in eradicating other ALHB infestations in the U.S. and in Europe.

The CFIA first detected ALHB in Canada in 2003, in Woodbridge, Ontario. As in the case of the most recent detection, the outbreak in Woodbridge resulted in the CFIA establishing a quarantine area to prevent the spread of the ALHB by establishing a regulated area through a ministerial order issued under the authority of the Act. In 2008, the CFIA conducted the final removal of trees infested with ALHB, which was followed by five years of surveys with no new detections. Consequently, on April 2013, ALHB was declared eradicated.

Subsequently, on August 15, 2013, a CFIA laboratory confirmed a new infestation in Ontario, in the cities of Mississauga and Toronto, within the vicinity of Pearson International Airport. This new area of infestation of approximately 45 km2 was declared a regulated area by ministerial order on December 3, 2013, to prohibit the movement of plants, plant parts and products from this zone to other locations in order to prevent any possible infested material from leaving that zone and infesting another location. The ALHB has not been detected in any other parts of Canada.

(ii) Emerald ash borer

The EAB is a wood-boring beetle native to Eastern Asia. It is believed to have been introduced to North America in the 1990s on wood packaging material, but was not detected until 10 years later, in 2002, in Windsor, Ontario, and Detroit, Michigan. All North American species of ash, and many exotic species of ash, are susceptible to EAB attack and infestation.

By the end of 2012, its presence had been confirmed in 27 Ontario counties, and in 7 areas in Quebec. Although the EAB does not pose a direct risk to human health, it is a destructive forest-pest. It has killed millions of ash trees in Ontario, Quebec and the U.S., and poses an economic and environmental threat to urban and forested areas of North America.

The initial response to the detection of the EAB in Canada was an aggressive eradication effort. In 2004, in an attempt to contain the existing pest population, the CFIA removed approximately 150 000 ash trees, creating an ash-free zone in southwestern Ontario, between Essex County and the municipality of Chatham-Kent, where the EAB had not yet been detected. It was hoped that this would act as a barrier to the continued spread of the EAB, but it was detected beyond this zone in January 2005.

It became clear the EAB had become increasingly established and it was no longer practical to pursue aggressive containment efforts through tree removal. In recent years, tree-aging analysis at newly detected sites has confirmed that the pest had already been established in the area for three to four years prior to detection, which implies that the EAB had already spread beyond that location at the time of detection.

Scientific research has demonstrated that tree removal is not effective due to the extreme difficulty in detecting this pest. Accordingly, the pest management strategy was shifted to containment in 2006 to allow science and urban forest managers time to research and develop effective risk-mitigation measures. With this shift in strategy, compensation was no longer provided. To help prevent the spread of the EAB, a ministerial order, the Emerald Ash Borer Infested Places Order, was made and then updated annually at the end of each survey season until March 2013 in order to take into account all new detections. In April 2013, the ministerial order was repealed, and the EAB was added to Schedule II (Restricted movement within Canada) of the PPR. The PPR restrict the movement of firewood of all species, as well as trees, nursery stock, logs, lumber, wood packaging or dunnage, wood or bark, wood chips or bark chips from regulated areas, in order to limit the spread of the EAB.

It is expected that the EAB will continue to spread naturally through all ash areas of Canada.

(iii) Brown spruce longhorn beetle

The BSLB was first identified in 1999 in Point Pleasant Park, Nova Scotia. Native to northern and central Europe, its presence in an area can pose a threat to domestic and international trade of Canadian spruce products. Like the EAB, it is thought to have arrived in Canada with wood packing material. There are indications that the pest has been present since at least 1990.

Since being detected, the BSLB has become increasingly established in central Nova Scotia, with several new detections found each year. In 2011 a single BSLB was captured in northeastern New Brunswick, and another was detected in 2014 in Memracook County, which represented the first detections of the BSLB outside of Nova Scotia.

From 2000 to 2006, eradication was pursued, which involved the cutting and disposal of selected infested and high risk trees, and regulating high risk material movement through the issuance of the Prohibitions of Movement and the Brown Spruce Longhorn Beetle Infested Places Ministerial Order. The affected area was added to the PPR in order to restrict its movement within Canada. Intensive infested tree removal and disposal efforts were undertaken within the park and the surrounding metropolitan area until 2006.

In 2007, the CFIA shifted its pest management strategy from eradication to containment in order to slow the spread of the pest. As a result, tree cutting activities were limited to those required to support research or where confirmation of suspect infestations required removal of trees.

It is expected that the BSLB will continue to spread naturally in eastern Canada.

Objectives

The objectives of these regulatory amendments are to

Description

With respect to the ALHB, this regulatory amendment extends the deadline for applications for compensation under the current IFPCR until the year 2020. This amendment allows the Minister of Agriculture and Agri-Food to provide compensation for the ALHB host trees in the new regulated area as a part of the eradication actions for the latest infestation. This amendment establishes March 31, 2019, as the deadline for receipt of a notice to dispose and December 31, 2020, as the deadline to submit applications for compensation for the ALHB host trees.

In addition, this regulatory amendment repeals subsections 2(2) and (3) in the IFPCR and removes all other references in the Regulations to the EAB and the BLSB, as the strategy to control those pests no longer includes their eradication or any related compensation.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this regulatory proposal, as there are no costs to small business.

Consultation

The CFIA continuously participates in committees and task forces, which involve participation from all provincial and territorial partners and affected stakeholders in order to

These committees and task forces include such groups as the Eastern Ontario Model Forest Committee, the Ontario and Quebec Regional Critical Pest Committees, Natural Resources Canada (Canadian Forest Service), the Ontario Ministry of Natural Resources, and the Ontario Critical Plant Pest Management Committee, which has the responsibility to oversee the development of species-specific plant pest response plans and the execution of those plans when deemed necessary. Members of this latter committee include the Ontario Ministry of Agriculture, Food and Rural Affairs, Agriculture and Agri-Food Canada, and the CFIA.

Consultations also take place through town hall meetings and meetings with industry representatives including woodlot owners and various industry associations. In addition, collaboration on eradication of the ALHB continues between the Government of Canada and the U.S. Scientific information and management strategies continue to be exchanged through meetings and workshops.

Since the new detection of the ALHB in 2013, the CFIA has continued to work with the affected municipalities of Toronto and Mississauga, as well as with the Town of Oakville, the City of Brampton and the region of Peel, to promote its ALHB eradication efforts.

Based on stakeholder feedback received since the new ALHB detection and the follow-up eradication efforts, it is anticipated that stakeholders will be supportive of the extension because it provides for financial compensation for the replacement of trees.

When the CFIA shifted its pest management strategy from eradication to containment for the EAB and the BSLB, it engaged with the stakeholders, and provided outreach and training sessions to provincial, municipal and city staff, as well as to landscape and tree companies. Both industry and stakeholders supported the strategy change the CFIA made as scientific data supported that approach. Containment continues to be the strategy implemented by the CFIA with the support of stakeholders. All compensation claims for these two pests have been paid to affected landowners who made them.

Rationale

An appropriate pest management strategy for each forest pest is essential to help protect non-infested areas of Canada, to guarantee market access and to reduce the economic impact on the forest industry, which is important to the Canadian economy as a whole. It is also important to prevent the spread of these pests in an effort to protect the environment and biodiversity, as well as the tourism industry.

The failure to eradicate the ALHB could have devastating effects on Canada’s natural hardwood forests and related industries, including the Canadian hardwood market. If the ALHB is not contained or eradicated, domestic and export industries (e.g. maple syrup, hardwood products) that rely on healthy hardwood trees will be negatively affected or restricted in their ability to conduct business. Other species of trees and wildlife could be affected by the loss of host trees and the change in the ecology and biodiversity of forests. Other countries may prohibit the import of Canadian hardwood products and maple syrup production could be seriously affected.

It is important to amend the IFPCR in order to extend the compensation period to March 31, 2019, so that affected individuals can continue to apply for compensation in cases where their trees have been or will be removed. Continuing to compensate those who have had trees removed complements the pest mitigation activities that have already been carried out. With this regulatory amendment, the Minister will be able to provide compensation to persons who have received, or will receive a notice to dispose of trees affected by the new infestation of the ALHB. Although the CFIA can require tree removal without offering compensation, it has been used effectively in past pest eradication initiatives.

The eradication of the ALHB is possible because measures to prevent any reinvasion, however unlikely, have been implemented in Canada. The main source of ALHB is through infested wood packaging materials. Through the Plant Protection Regulations, Canada has put in place requirements for wooden packaging materials to be heat-treated or fumigated before they are allowed into the country. Also, inspection of incoming plants and plant products is required to prevent invasive insects from coming into Canada. While the probability of success of eradication is unknown, the risk to Ontario forests should eradication not succeed is high. Thus, the CFIA’s goal is to implement the most appropriate actions aimed at eradicating the ALHB from this urban environment as quickly and efficiently as possible. ALHB is a good candidate for eradication because the infestation is confined to a readily controllable area. The spread is slow and previous actions to eradicate this pest in affected areas have been successful. Compensation is a key component to the success of eradication, as it encourages the public to report detection of the pest and also facilitates the process of removing infected trees, as owners of trees react more positively when they know that there is some financial compensation available.

The EAB and the BSLB are being controlled through the pest management strategy of containment. Repealing subsections 2(2) and (3) and all other references to those pests in the IFPCR does not affect the established pest management strategy. This amendment makes the IFPCR consistent with current practices and policy objectives in relation to those pests.

The Government of Canada will incur incremental costs for compensation payments as a result of the amendments to the IFPCR. The affected landowners will voluntarily incur some incremental cost associated with the time spent to apply for the compensation. The annualized value of the costs will be $127,257 (in 2012 constant dollars) for the Government of Canada and $205 (in 2012 constant dollars) for affected landowners over 10 years.

The cost of compensation payments was determined based on the value of removed trees up to the regulated maximum amount in different areas and the eligibility for compensation under the IFPCR. To estimate the application cost for affected landowners, it was assumed that it would take 15 minutes to apply. It was also assumed that all affected landowners will apply.

The CFIA has shifted the pest control strategy from eradication to containment for both the BSLB and the EAB. In the baseline scenario, the CFIA does not pay compensation when detections of the two pests are found outside of the areas they are already known to occur, due to the control strategy of containment. With the repeal of the provision, when new detections occur, CFIA will continue its practice regarding compensation. In this regard, there will be no incremental economic impact associated with the repeal of the BSLB and the EAB from the IFPCR.

Implementation, enforcement and service standards

These Regulations come into force on registration.

These Regulations enable compensation to be paid to affected landowners who received a notice to dispose, issued by a CFIA inspector, during the period beginning on April 1, 2013, and ending on March 31, 2019. Affected landowners have until December 31, 2020, to apply for compensation.

The Minister of Agriculture and Agri-Food Canada will only provide compensation for the purchase of trees that are not considered to be hosts for the ALHB and reasonable planting costs for such trees. Trees that are not susceptible to the pest in question should be planted in their place.

With the coming into force of the Regulations, the CFIA will undertake actions to make affected landowners aware that they are eligible for compensation. A proactive communications plan has been developed to communicate the availability and details of the compensation to affected stakeholders, and to promote public awareness. The CFIA will issue a news release, update its Web site and make a spokesperson available. Letters and compensation applications, with instructions on how to apply for compensation, will be mailed to affected property owners. In addition, messages containing this information will be sent out via social media (Twitter, LinkedIn, Facebook, Pinterest). Some landowners (for example affected municipalities) are already aware that compensation is possible as a result of past experience with the ALHB.

Since the new detection of the ALHB in 2013, the CFIA has continued to work with the affected municipalities of Toronto and Mississauga, as well as with the Town of Oakville, the City of Brampton and the region of Peel to promote its ALHB eradication efforts.

Finally, both Canada and the U.S., as a result of their experience with this pest, have implemented a strong outreach and communications initiative to inform and educate the public about this quarantine pest.

Contact

Marcel Dawson
National Manager
Forest Products, Plant Protection Division
Canadian Food Inspection Agency
59 Camelot Drive
Ottawa, Ontario
K1A 0Y9
Telephone: 613-773-7265
Fax: 613-228-6626
Email: Marcel.Dawson@inspection.gc.ca