Owner says North Carolina regulations have preempted federal standards

By MATEUSZ PERKOWSKI
Capital Press

Nursery owner Tom Fessler was recently caught off guard by out-of-state plant regulations he didn't even know existed.

A few days after sending some azaleas from Oregon to South Carolina, Fessler's company, Woodburn Nursery, was notified the shipment was out of compliance with that state's new plant importation rules.

Unbeknownst to Fessler, the nursery had been required to submit a phytosanitary certificate along with the shipment.

Such certificates verify that the plants had been inspected for phytophthora ramorum, or sudden oak death, a fungus-like pathogen found on the West Coast.

The nursery should also have sent prior notice of the shipment to South Carolina's Department of Plant Industry.

"I wasn't informed of it, and none of us at the nursery were," said Fessler.

As a result, the shipment was destroyed, affecting the nursery as well as its South Carolina customer, he said.

"They lost a sale and we lost a sale, plus our product," Fessler said.

Fessler now submits a certificate along with every shipment headed to South Carolina -- which involves payments to the USDA and state agriculture inspectors -- but he remains troubled by the new rules.

"Basically, what they're trying to do is preempt federal law," said Fessler.

Under regulations developed by USDA's Animal and Plant Health Inspection Service, nurseries in Oregon, Washington and California can ship plant material to other states as long as they pass a yearly inspection.

Individual states are not allowed to exceed those regulations unless they're granted an exemption by APHIS.

"That's the value of federal regulation. It establishes a level regulatory field across the country," said John Aguirre, executive director of the Oregon Association of Nurseries. "It should be important to every state to protect that federal preemption language. Otherwise, it's just chaos."

Aside from saddling West Coast nurseries with additional expenses, the South Carolina inspection and notification requirements create an administrative hassle, he said.

Nursery organizations from Oregon and California, as well as the American Nursery & Landscape Association, soon plan to meet with APHIS officials to discuss the problem, said Aguirre.

If South Carolina doesn't bring its regulations in line with federal rules, the possibility of a federal lawsuit is on the table, he said.

Christel Harden, assistant head of South Carolina's Department of Plant Industry, said the regulations were enacted earlier this year to protect the state's agricultural industry and its forests, which contain phytophthora-prone rhododendron species.

Since 2004, when the federal government began regulating nursery shipments from Oregon, California and Washington, there have been six major "trace forwards" of plant material shipped from infected nurseries to South Carolina, she said. Agriculture officials in that state had to find, recover and destroy those potentially infected plants, Harden said.

"It took our inspectors away from their regular work, and it made us the bad guys," she said. "I feel like there is an unreasonable burden on our department."

South Carolina and 13 other states asked for exemptions to APHIS plant pest regulations earlier this year, but those requests were denied, Harden said.

However, the state has not been told its new regulations exceed the agency's rules, Harden said.

South Carolina hopes APHIS can develop a "more realistic" program to discourage the spread of P. ramorum, she said. "It would have to be a regulation that could be evenly applied to the East and the West."