Board of Agriculture Approves Draft Rule To Block Import of `Ohi`a Rust Carriers

At long last, the Hawai`i Board of Agriculture has moved toward a quarantine rule that is intended to reduce the likelihood that new strains of the `ohi`a rust, Puccinia psidii, are introduced to Hawai`i.

“The board has determined that there exists serious danger to all `ohi`a (Metrosideros spp.), the `ohi`a forests of Hawai`i, and horticultural and agricultural industries from the introduction of new strains of the `ohi`a rust,” states the preface of the draft rule, approved by the BOA February 24.

The next step is to hold public hearings. None had been scheduled by the time Environment Hawai`i went to press.

For such a short rule, it was certainly a long time in the making. A strain of the rust was first noted in Hawai`i in April 2005. Even before the species had been identified by scientists at the University of Hawai`i as Puccinia psidii Winter, a fungus affecting plants in the Myrtaceae family, the rust had spread across the island chain, causing widespread devastation to stands of rose apple trees. The fungus also sickened and killed `ohi`a seedlings grown in nurseries.

The quick spread of the fungus caused natural resource managers to worry that it could also devastate the more than a million acres of Hawai`i’s `ohi`a forests. In 2007, the Board of Agriculture approved a one-year emergency rule banning imports of Myrtaceae, including plants such as myrtle, waxflower, and eucalyptus, whose foliage is common in cut-flower arrangements.

The emergency rule expired after one year. Since then, there has been no restriction on the import of plants that could carry the rust, although scientists at the University of Hawai`i and in state and federal agencies continued to assess the magnitude of the risk posed by the rust. By working with their counterparts in Brazil, they tested the virulence of the fungus on `ohi`a, with the results far worse than they had expected. Multiple strains of the fungus were found, including many that had a severe impact on `ohi`a.

Three years after the emergency rule expired, in 2011, Carol Okada, then-manager of the Plant Quarantine Branch of the state Department of Agriculture, announced that the department was preparing a rule that would permanently ban such imports. At the Hawai`i Conservation Conference held that summer, Okada noted that most DOA rules are to protect agricultural industries, such as sugar, pineapple, and coffee. This rule, however, she said, “will be the first to protect native forests.” She expressed optimism that the rule would be in place by December of that year.

But it took until February 2015 for the board to give even preliminary approval to the draft rule. It will be months, at the earliest, before the rule takes effect, giving Hawai`i’s `ohi`a the protection it needs.

Scott Enright, BOA chairperson, described the process in a letter to Environment Hawai`i. The Hawai`i Department of Agriculture, he wrote, “is at the first steps in that process, which entail public hearing, board final approval/adoption, and then the chairperson’s signature, Governor’s approval, and filing with the Lieutenant Governor’s office.”

“The Plant Quarantine Branch is preparing the proposed amendment analysis and documentation that, per the Governor’s administrative directive, must be submitted to the Small Business Regulatory Review Board, Department of Business, Economic Development, and Tourism, and the Department of Budget and Finance, for comment in conjunction with submitting the proposed amendment for the Governor’s preliminary approval to go to public hearing.”

It is possible that a federal order will pre-empt the state rule, Enright went on to say. “HDOA has been working closely over the past year with the U.S. Department of Agriculture,” Enright said, “which intends to release a federal order to regulate the movement of hosts of `ohi`a rust. We have been told by the USDA that they will have a draft within the next couple of months for us to review. In the meantime, we have shared our proposed rule changes with them. We anticipate that through this process we will have compatible regulations at the state and federal levels. We would not want to see a federal regulation which would pre-empt state laws by being less restrictive than state regulations.”

The Department of Agriculture’s quarantine rules apply only to domestic imports. Shipments of commodities from foreign sources are subject to federal regulations of the USDA’s Animal and Plant Health Inspection Service (APHIS).

Legislative Concern

The delay between the expiration of the emergency rule in 2008 and the initial approval of a draft permanent rule is inexplicable. In 2014, the Legislature, which also seems to have been perplexed by the stall, adopted a resolution intended to spur the board to adopt such a rule.

House Concurrent Resolution No. 47 found that “the introduction of new strains of Puccinia psidii pose a significant threat to native forests and to the horticultural and agricultural industries of Hawai`i.” The resolution also requested the Department of Agriculture “to expeditiously adopt a permanent rule restricting important of plants in the Myrtaceae family.

Enright could offer no explanation either. “I became chair last January,” he told Environment Hawai`i in a phone interview, “and asked why it wasn’t moving.” He found it “sitting in Plant Quarantine,” undergoing further review. “We reached in and moved it on, took it to the Plant and Animal Review Board,” and then on to the full Board of Agriculture.

‘Those Folks…’

An exchange of emails following a simple request for information from Environment Hawai`i sheds no light on the reasons for the apparent foot-dragging in the Department of Agriculture on the `ohi`a rust rule. But it does reveal a kind of paranoia and ill will that many who deal with the department have come to expect.

Here are highlights of the exchange:

On February 27, three days after the Board of Agriculture meeting where the `ohi`a rust rule was to be heard, Patricia Tummons, editor of Environment Hawai`i, emailed the Department of Agriculture: “Could someone let me know whether the proposed rule amendment to prohibit the introduction of puccinia rust (ohia rust) was approved on February 24? Thank you very much.”

On March 2, Janelle Saneishi, the department’s public information officer, replied: “Yes. Thank you for your interest.”

Tummons looked for the draft rule on the DOA website but could not locate it.  So, a week later, Tummons emailed Saneishi again, asking: “Could you send me the new rule, please?”

“Amy doesnt [sic] care for those folks, so I wouldn’t tell them that it was ‘passed’ by the board. Her [Tummons’] question was loaded …”

Saneishi forwarded the email to several staffers with the Plant Quarantine branch, asking their advice on how she should respond. To Lance Sakaino, the acting plant quarantine specialist, she added: “Sorry, forgot to add that this is a UIPA request since she is asking for documents. She may be charged for the copying time and per page fee. Thanks!” UIPA refers to the Uniform Information Practices Act.

Theresa Manzano, acting plant specialist, forwarded the email to Jonathan Ho: “JH – I don’t know how much information to give her [Tummons], according to Janelle, this is a UIPA request. What ‘papers’ is she allowed copied or given out on this subject. Please advise on this matter. Thanks.”

Ho, acting inspection and compliance section chief of the Plant Quarantine branch, consulted with Amy Takahashi, the current branch manager. He reported back to Manzano: “Spoke to Amy. I wouldn’t worry about UIPA yet. The link that I attached in this email is on the HDOA website and should answer her question. Stuff on the web is public and doesn’t require UIPA. Amy doesnt [sic] care for those folks, so I wouldn’t tell them that it was ‘passed’ by the board. Her [Tummons’] question was loaded as she just asked if it was approved. She never asked by who. She may be thinking that it is already in effect when it is not. Also she said that the rule is to prohibit ohia rust. In reality, the proposed rule is to restrict plants in the family Myrtaceae. It may be semantics, but you can never tell.

“Feel free to check it out online. If you’d like you can send her an actual copy, but I’d just let her read what the site has to say. Less work for you. See my sample below. It’s a little matter-of-fact, but she can’t read into anything [sic]. Safer for you. If she needs more, she’ll let you know.”

Ho’s “sample” text: “Attached is a link to our website that should answer your question. If you have further questions, please feel free to contact me.” Along with the link to the DOA website, that was the sum and substance of the email that on March 10 was sent to Tummons by Manzano.

The draft rule, by the way, may be found under the “Meetings and Reports” heading of the DOA website (http://hdoa.hawaii.gov).

Enright acknowledged that the DOA website was outdated and difficult to navigate. “We brought a new webmaster on,” he said, adding that he hopes soon to have board agendas, meeting minutes, and the like available on the site “inside of a month.”

As to the email thread generated by the Plant Quarantine personnel in response to the request for information by Environment Hawai`i, Enright gave his assurance “that the views expressed in that email do not express the views of the department.”

* * *

USGS Recommendations

In 2010, the U.S. Geological Survey issued a report summarizing what was known about the rust and making recommendations on ways to prevent the introduction of new strains to Hawai`i.

The author, Lloyd Loope, put the process for addressing plant diseases in context, noting how that put biodiversity conservation at a disadvantage.

“Agriculture has a standard, usually viable option, even for perennial crops, when quarantines for plant pathogens fail – development of resistant strains of the crop in question,” Loope wrote.

“The same is not the case for biodiversity conservation. Hawai`i’s Metrosideros polymorpha [ohi`a] forest provides a classic example of the contrast between the needs of biodiversity conservation and those of agriculture/forestry. Substantial effort has been expended in developing a research basis for breeding P. psidiii resistant strains of Eucalyptus. In contrast, almost nothing is known about the genetics of M. polymorpha other than that great variation exists across broad environmental gradients. Nothing is known about the genetics of `ohi`a in relation to resistance to P. psidii. It might be possible to breed a resistant strain of `ohi`a, but the complexity of trying to develop resistant strains across broad environmental gradients is numbing, especially in the absence of commercial incentives.”

In the absence of hard information about how `ohi`a might be affected by different strains of Puccinia psidii, Loope invoked the precautionary principle: Logic suggests, and the international standards clearly permit, that the resource should be protected while this determination of risk is made.”

In any case, Loope concluded, “HDOA has a clear mandate for protecting Hawai`i’s environment, including its `ohi`a forest. Based on the information cited and summarized in this report, it would seem that HDOA ahs the viable option of rigorous regulation of pathways to prevent arrival of additional strains of the rust fungus P. psidii. They also have the supplemental justification of protecting Hawai`i from at least five other potentially serious pests of native and non-native Myrtaceae already present in the United States but not in Hawai`i. Regulation of Myrtaceae through state quarantine is a necessary prerequisite to pursuit of change in federal quarantine … and given current procedural constraints, provides the only long-term option for reasonably comprehensive protection from new strains of P. psidii.”

— Patricia Tummons

For Further Reading

Environment Hawai`i reported on Carol Okada’s presentation at the 2011 Hawai`i Conservation Conference in our September 2011 cover story: “DOA’s Draft Rule on `Ohi`a Rust the First to Protect a Native Species,” available online at http://www.environment-hawaii.org.

The USGS report mentioned in the article is by Lloyd Loope, “A Summary of Information on the Rust Puccinia psidii Winter (Guava Rust) with Emphasis on Means to Prevent Introduction of Additional Strains to Hawai`i.” It is available online at http://pubs.usgs.gov/of/2010/1082/.

The draft rule may be read on the Department of Agriculture’s website: http://hdoa.hawaii.gov. Click on the “Meetings & Reports” link, then select “Proposed Administrative Rules.” That will bring up a link to the draft rule.