Research on Invasive Pests and Diseases in New Zealand and the Law

Regulatory issues in plant protection 281

Research on invasive pests and diseases in New Zealand and the law

D.A.J. Teulon1, K.S.H. Boyd Wilson1, A. Holton1 and G.S. Ridley2

1The New Zealand Institute for Plant & Food Research Limited, Private Bag 4704, Christchurch, New Zealand 2Environmental Protection Authority, PO Box 131, Wellington 6140, New Zealand Corresponding author: [email protected]

Abstract Two New Zealand statutes have important implications for research with organisms not previously found in New Zealand and either incidentally or illegally introduced. The Biosecurity Act 1993 and the Hazardous Substances and New Organisms Act 1996 define the legal framework and allowable activities for ‘unwanted’ and ‘new’ organisms, respectively. Aspects of these Acts that are relevant to research activities possible with plant pest and disease organisms after their discovery, in particular those organisms requiring rapid development of management strategies and tools, are summarised. The need for accurate, detailed and accessible lists of ‘unwanted’ and ‘new’ organisms, and the need for the Ministry for Primary Industries (MPI) and the Environmental Protection Authority (EPA) to respond rapidly when the status of these organisms needs to be changed is highlighted. Consideration should be given to making the legislation concerning ‘new’ organisms more applicable to incidentally or illegally introduced organisms.

Keywords new organisms, unwanted organisms, pest, disease, incursion.

INTRODUCTION New Zealand productive (e.g. pastures, crops, Bactericera cockerelli and Candidatus Liberibacter orchards, plantation forests) and natural solanacearum (Teulon et al. 2009), the causal systems are subject to continued invasion by agent of kiwifruit bacterial canker Pseudomonas new pest and disease species from overseas (see syringae pv. actinidiae (Psa) (Everett et al. 2011a), Goldson & Suckling 2003; Kriticos et al. 2005; the Monterey pine aphid Essigella californica Froud et al. 2008), and this is likely to increase (Flynn et al. 2003), and Didymosphenia geminata with increased trade (Liebhold et al. 2012) and (Lyngbye) Schmidt (commonly known as international travel. In some cases, these new didymo) (Bickel & Closs 2008). species are known to be sufficiently damaging The Ministry for Primary Industries (MPI) to these productive and natural ecosystems was formed on 30 April 2012 as a result of the that new pest management strategies and tools merger of the New Zealand Food Safety Authority, need to be developed rapidly. Recent examples the Ministry of Fisheries and the Ministry of include the clover root weevil Sitona lepidus Agriculture and Forestry. MPI investigates all (Eerens et al. 2005), the potato tomato psyllid suspected new pest or disease species found in

New Zealand Plant Protection 65: 281-288 (2012) www.nzpps.org

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New Zealand. Its response includes establishing agencies (Biosecurity Act 1993). The Act provides the identity of the new incursion (i.e. genus/ a range of functions, powers and options for species name), determining its distribution within the management of risk organisms (MAFBNZ New Zealand, assessing its likely impact on New 2008b). The Biosecurity Act is administered by Zealand’s productive and natural ecosystems, MPI giving it considerable powers to respond undertaking a cost/benefit analysis of likely impact to new pest and disease incursions within New and management response, and the feasibility Zealand (MAFBNZ 2008a). of either eradication or long-term management The Act defines an ‘unwanted organism’ as (MAFBNZ 2008a). In many cases, where ‘any organism that a Chief Technical Officer eradication is not considered feasible, there is a believes is capable or potentially capable of need for research to support the rapid development causing unwanted harm to any natural and of new systems and tools for management of these physical resources or human health’. These new species once they are considered permanently organisms may or may not already be present in established in New Zealand. New Zealand. This definition also includes any Two New Zealand statutes have important ‘new’ organism that EPA has declined approval to implications for conducting research on new import (an unlikely scenario for most pests and pest and disease organisms that have been either diseases) and any organism specified in Schedule incidentally (a new organism that is imported 2 of the HSNO Act (no invertebrate plant pests in or on goods, with some specific exceptions) or diseases are listed there). or illegally introduced into New Zealand. These The Biosecurity Act also places a general duty are the Biosecurity Act 1993 and the Hazardous on all persons in New Zealand to inform the Substances and New Organisms Act 1996 MPI (as MAF in the Act) of the presence of an (HSNO), which define the legal framework and organism not normally seen in New Zealand allowable activities for ‘unwanted’ and ‘new’ (Section 44) or a ‘notifiable’ organism (Section organisms, respectively. 46), respectively. This paper highlights some of the important The Biosecurity Act stipulates activities that issues that are pertinent to research activities cannot be carried out with ‘unwanted organisms’ carried out with pest and disease organisms (Section 52) (prohibited activities.). “No person after they have been discovered in New Zealand. shall knowingly communicate [Oxford English The aim is not to interpret the legal intention of Dictionary = transmit], cause to be communicated, these Acts, but to identify some issues that plant release [no definition within the Act but in relation protection researchers need to consider when to ‘new organisms’ this means to allow the organism working with new pest and disease incursions to move within New Zealand free of any restrictions within New Zealand, and to suggest ways to other than those imposed in accordance with the make that activity more effective with respect to Biosecurity Act 1993 or the Conservation Act 1987], the law. This paper does not concern itself with or cause to be released, or otherwise spread, the introduction of new biological control agents any pest or unwanted organism except” under into New Zealand or the development of new special circumstances largely governed by MPI. genetically modified organisms, which both have Additionally, the Act stipulates “that the owner clear status as new organisms. or person in charge of an organism which that person knows or suspects constitutes, contains, Biosecurity Act 1993 or harbours a pest or ‘unwanted’ organism” must This Biosecurity Act provides a legal basis for not “propagate, breed, or multiply the pest or excluding, eradicating and managing pests and ‘unwanted’ organism or otherwise act in such diseases and unwanted organisms, and its powers a manner as is likely to encourage or cause the can be variously used by MPI, other government propagation, breeding, or multiplication of the agencies, regional councils and pest management pest or ‘unwanted’ organism” (Section 53 (1)(c).

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Making an organism ‘unwanted’ triggers field test, or release new organisms. These terms actions to be taken to manage the organism at the are described below. border or to require any activitiy (e.g. research) • ‘Import’ relates to intentional importation of within New Zealand to be approved. In order to the organism into New Zealand and generally conduct research on an ‘unwanted’ organism, into containment. This would seem to be a permission must be obtained from MPI (see reasonable restriction in most cases. MAFBNZ 2010a) and generally needs to be carried • ‘Develop’, in relation to incidentally imported out under containment conditions. organisms, includes ‘the deliberate isolation, aggregation, multiplication, or other use of Hazardous Substances and New Organisms the organism’. This could be interpreted as Act 1996 (the ‘HSNO’ Act) prohibiting the rearing of new pest organisms The purpose of the HSNO Act is to protect the for research purposes and, it is suggested that environment, and the health and safety of people this requires further policy consideration. and communities, by preventing or managing the • ‘Field test’ means ‘the carrying on of trials on adverse effects of hazardous substances and ‘new’ the effects of the organism under conditions organisms (HSNO 1996). The Act defines what similar to those of the environment into is a ‘new organism’ (Section 2A (1)) and what which the organism is likely to be released, is not (Section 2A (2)). A pest or disease species but from which the organism, or any heritable regarded as having newly invaded New Zealand material arising from it, could be retrieved is very likely to be a ‘new organism’ because it is or destroyed at the end of the trials’. This ‘an organism belonging to a species that was not definition seems to relate to newly introduced present in New Zealand immediately before 29 biological control agents or newly developed July 1998’. It may also be a ‘new organism’ if it genetically modified organisms. It does not ‘belongs to a species, subspecies, infrasubspecies, explicitly rule out ‘incidentally imported variety, strain, or cultivar that has been eradicated organisms’, so its application to research on from New Zealand’ such as the white-spotted new pest and disease incursions is not clear tussock moth, Orgyia thyellina (Morgan 1998). and requires further policy consideration. The Act is not clear if this relates to organisms • ‘Release’, in relation to new organisms, first found before and/or after 29 July 1998 and is means ‘to allow the organism to move within clearly problematic where there is disagreement New Zealand free of any restrictions other over whether a newly discovered organism is the than those imposed in accordance with the result of a new introduction or merely a failed Biosecurity Act 1993 or the Conservation eradication as is the case with the Mediterranean Act 1987’. This could be interpreted as fruit fly (Ceratitis capitata) in California (Myers prohibiting the movement of an established et al. 2000). The Act does, however, makes it pest new organism between laboratories (i.e. clear that a ‘new organism does not cease to be not under containment) or its release onto a new organism because it is an incidentally field sites, despite these pests exisiting outside imported new organism’, as is likely to be the containment in fields or orchards. Again, case with many new pest and disease incursions another area worthy of policy consideration. or ‘because it is subject to a conditional release The HSNO Act also allows for MPI, or its approval’, or ‘because it is a qualifying organism agents, to isolate, aggregate, multiply, or use an approved for release with controls’. The last two incidentally imported new organism for the conditions are unlikely to be relevant for pest and purpose of identifying, managing, or eradicating disease species. that organism (Section 25 (1B)) but this option A range of activities using new organisms are does not seem to be used very often for research prohibited without HSNO approval (Section 25 purposes. However, what constitutes an agent is (1)(b)). Approval is required to import, develop, not clear and requires further policy consideration.

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DISCUSSION (EPA 2011). This determined that Psa was not a In the following discussion, some of the issues ‘new’ organism because it belongs to a species, that need to be considered before undertaking Pseudomonas syringae, which had already been research for the management of new pest determined as being not a ‘new’ organism, even and disease incursions in New Zealand are though the specific pathovar was not considered highlighted, and some recommendations on how to be in New Zealand before the 2010 outbreak. these might be addressed are provided. This process took approximately 2 weeks. Psa remains an ‘unwanted’ organism under the Determination of ‘unwanted’ and Biosecurity Act and therefore still subject to ‘new’ organisms regulation. MPI keeps a searchable on-line register of Lack of clarity around new organisms may unwanted and notifiable organisms that it has also occur for a number of reasons that might considered (MAF BNZ 2010b), although there require a determination under Section 26 of the are undoubtedly many other species that could be HSNO Act (Table 1). Although not all examples added if additional risk assessments were carried are important pests and diseases, they illustrate out. Similarly, the EPA maintains a publicly complexities in categorising which organisms are available list of organisms where decisions on the new and which are not. ‘new’ or ‘not new’ status have been considered, and there are working lists of organisms that require Options for research on ‘new’ organisms further information. Organisms are added to It is generally considered that the HSNO Act was these lists as new information becomes available. designed to deal with the possible intentional It is usually very clear whether an organism is release following risk assessments of new ‘unwanted’ or not, as it is specifically designated organisms into New Zealand such as biological as such by MPI. However ‘new’ organisms are control agents or genetically modified organisms, determined primarily through interpretation and to distinguish beneficial from detrimental of section 2A of the HSNO Act. Many newly organisms (Upton 1999). However, it does not discovered invasive organisms would clearly be appear that it was intended to deal efficiently ‘new’ organisms, for example the gypsy moth, with unintentionally introduced organisms that Lymantria dispar, and related species, which are cannot be eradicated, but must be managed, the subject of a national surveillance programme under the Biosecurity Act. Therefore the options (Brockerhoff et al. 2010). However, in some cases for research on ‘new’ organisms under the HSNO it is not clear whether or not a new pest or disease Act can appear somewhat inappropriate. species is a ‘new’ organism. For example, the There are provisions under the HSNO Act causal agent of the zebra chip disease in potatoes (Section 34) to seek approval from the EPA to (Candidatus Liberibacter solanacearum) (first ‘import for release’ and ‘release from containment’, detected in 2008) may have been introduced including a Rapid Assessment (Section 35). The with its insect vector host (Bactericera cockerelli) Minimum Standards (Section 36), however, in 2005-2006 (Teulon et al. 2009) or it may have appears to rule out considering any new pest been in New Zealand before then (and before July and disease incursion for release since it requires 1998). Nevertheless, this species was made ‘not that an application should be declined if the new new’ by Order in Council in 2011 under section organism is likely to cause disease, be parasitic, 140(1)(ba) (SR 2011/299; Hazardous Substances or become a vector for human, animal, or plant 2011) (see below for further discussion) to make disease, as is the case with many pest and disease its legal status under the HSNO Act absolutely incursions. EPA can also authorise approval ‘to clear. For similar reasons, a determination on the import or release new organisms with controls’ status of the causal agent of kiwifruit bacterial (Section 38A), including a Rapid Assessment canker Pseudomonas syringae pv. actinidiae (Psa) (Section 38BA), but the nature of new biological was made under Section 26 of the HSNO Act invasions and the controls imposed upon them

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Table 1 Examples of organisms where lack of information can lead to uncertainty over their new organism status. Organism (host plant) Reason for uncertainty Likely status Reference Fusarium Recently characterised but likely to have Organism found in Monds et pseudograminearum been present in NZ before 1998. NZ before 1998. al. 2005 (Ascomycota) Not a new organism. (on cereals) Frankliniella A morphologically identical species Both organisms Rugman- nr. occidentalis to Frankliniella occidentalis has been found in NZ before Jones et (Thysanoptera) found in NZ since the 1930s but is now 1998. Both not new al. 2010 (on various plants) considered to be a new species. The organisms. true Frankliniella occidentalis was first recorded in NZ in the 1980s. Megoura stufkensis Regarded as indigenous but no close Native. Not a new Eastop (Hemiptera) known relatives in NZ organism. 2011 (on Carmichaelia) Sphaceloma perseae Wrongly identified in NZ from one Not present in Everett et (Ascomycota) isolate that was subsequently identified as New Zealand. al. 2011b (on Persea americana) Phaeosphaeria. New organism. Neonectria fuckeliana Herbarium specimens and isolates of the Organism found Dick et (Ascomycota) exotic fungus held in Scion collections in NZ before 1998. al. 2011 (on Pinus radiata) examined and dated back to 1997. Not a new organism. Neobulgaria alba sp. New fungal species found on in kiwifruit Native. Not a new Johnston nov. (Ascomycota) vine wood and fallen wood in native organism. et al. (on Actinidia deliciosa) forests. 2010 would appear to make this option impracticable. development of pest and disease management For example, the controls may include: limiting strategies and tools, it would not allow for the the dissemination or persistence of the organism validation of these strategies and tools in the in the environment (Section 38D (e)); or pasture, orchard, crop, forest or natural system requiring the disposal of any organisms (Section where they are actually needed. It many cases 38D (f)). If these containment controls could be it may lead to the paradoxical situation where met then the new pest or disease could very likely the activities are carried out on a organism in be eradicated. It is conceivable that an application a containment facility that is itself surrounded requiring the research and management that by that same organism in the crops or fields resulted in the reduction or even eradication of surrounding it. The enforcement of such the organism could be approved. controls would be difficult and/or would add an The EPA may approve importation or field additional burden on research programmes to testing of any new organism in containment develop suitable marking techniques. including field testing or maintaining new Section 25 (1B) of the HSNO Act allows for organisms in containment to produce antigens, MPI or ‘its agents’, to isolate, aggregate, multiply, biopesticides, biopharmaceuticals, enzymes, or use an incidentally imported new organism hormones, or vaccines, for diagnostic purposes, for the purpose of identifying, managing, or and/or other purposes the Authority thinks fit eradicating that organism. This option seems to (Section 39). While this would allow a range be seldom used to undertake research into the of activities in containment useful for the ongoing management of new pests and diseases.

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If the ‘agent’ provision section of the HSNO ACT appropriate authority). Based on the statement is not used then the only meaningful mechanism ‘from time to time’, presumably new organisms allowing plant protection workers to respond can be made ‘not new’ outside this cycle, but effectively to a new pest or disease incursion of a this has not happened to date. This would be ‘new’ organism is to have these organisms made influenced by the importance of the pest or ‘not new’ under Section 140 (1) (ba) of the Act disease and the Cabinet and Parliamentary orders (EPA no date). Under this section regulations of business. A more pragmatic approach would can be made to prescribe organisms as ‘not new’ be to have an organism made ‘not new’ as soon organisms. This change requires the making of as MPI had determined that eradication was not new regulations and obtaining Cabinet approval. feasible. MPI could then retain (or invoke) the In 2010, the Ministry for the Environment ‘unwanted’ status of that organism as required. instigated an annual process to allow this to The major difficulty in making an organism ‘not happen. However, there is no statutory timeframe new’ is the requirement for an Order in Council, associated with this process. which requires Cabinet time to be available. In May 2011, Plant & Food Research applied Another pragmatic solution would be to delegate to the Ministry for the Environment (MfE) the decision-making power to the EPA, so that to make ‘not new’ a range of plant pests and cost-effective and time-bound decisions could be diseases. These species were all significant pests made. However, such a delegation would require or diseases of horticultural crops (i.e. tomato further policy consideration. potato psyllid (TPP) (B. cockerelli), Candidatus Liberibacter solanacearum, Australian citrus SUMMARY whitefly (Orchamoplatus citri), lettuce aphid Plant protection researchers need to be aware of (Nasonovia ribisnigri), intonsa flower thrips the legal restrictions placed upon them by the (Frankliniella intonsa), and the honey bee parasite Biosecurity and HSNO Acts when undertaking (i.e. varroa mite (Varroa destructor)). Each species research on ‘unwanted’ and ‘new organisms’. In required urgent and on-going research into their many cases these limitations may seem counter- management, as they had formed breeding productive for the improved management of pest populations within New Zealand and were widely and disease organisms. MPI, MfE and EPA need dispersed throughout the country. MPI no longer to ensure that information on the status of these had any intention of trying to eradicate them. pests is clear and easily accessible, and that they The amendment was passed on 29 August 2011 expedite appropriate changes in ‘unwanted’ and (SR 2011/299; Hazardous Substances 2011). ‘new’ status as rapidly as possible. Consideration These organisms are now considered ‘not new’ needs to be given to changing the legislation with organisms and therefore do not fall under the respect to ‘new’ organisms, so that appropriate authority of the HSNO Act. The process, which research can be initiated and conducted much included consultation with MfE, EPA, MPI, more rapidly. researchers, horticultural industry groups, local government, iwi organisations and other affected ACKNOWLEDGEMENTS parties, took from March until August 2011. We thank Max Suckling for useful comments While the annual process for making organisms on an earlier draft of the manuscript. Warrick ‘not new’ is a step in the right direction, it may Nelson, Stuart Ritchie and Philippa Stevens still lead to challenges in the rapid management provided valuable discussion in relation to this of new pest and disease incursions. If a new subject, which was taken into account in the incursion occurs soon after the annual call, the development of this manuscript. An earlier chance to make a new organism ‘not new’ may draft of this manuscript was provided to MPI not occur for another year. In the meantime, (George Gill) for comment. The research was research on that new organism is restricted by carried out under the Better Border Biosecurity the HSNO Act to containment (after obtaining (B3) collaboration.

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