4 TAC §§19.170 - 19.174
The Texas Department of Agriculture (the department) adopts
on an emergency basis new §§19.170 - 19.174, concerning the sapote
fruit fly, Anastrepha serpentina (Wiedemann) quarantine. The new sections
are adopted on an emergency basis to prevent the spread of the sapote fruit
fly and facilitate its eradication. The new sections require application of
treatments to achieve eradication and prescribe specific restrictions on the
handling and movement of quarantined articles. On January 6, 2003, an adult
of the sapote fruit fly was detected in a McPhail trap located south of McAllen
in Hidalgo County in a grapefruit orchard. Four additional flies were collected
at the following locations: January 8, backyard grapefruit tree southeast
of McAllen; January 9, grapefruit orchard near Donna, Hidalgo County; January
13, grapefruit orchard near Donna; and February 7, backyard sour orange tree
south of McAllen. The quarantine trigger was met twice because two flies each
at Donna and McAllen were less than 3 miles apart. The McPhail traps have
been used in the Lower Rio Grande Valley for more than ten years to survey
for infestations of the Mexican fruit fly, Anastrepha ludens (Loew). In addition
to the Mexican fruit fly, the trap attracts other Anastrepha species as well
as other fruit fly species.
The department believes that it is necessary to take this immediate action
to prevent the spread of the sapote fruit fly into other citrus growing areas
of Texas, and adoption of this quarantine on an emergency basis is both necessary
and appropriate. The citrus industry in particular is in peril because without
this emergency quarantine and treatment of the infestation, USDA would quarantine
Texas and as a result, Texas could lose important export markets and would
require regulatory treatments such as fumigation of all exported fruit. The
emergency quarantine takes the necessary steps to prevent artificial spread
of the quarantined pest and provides for its elimination, thus protecting
the industry.
New §19.170 defines the quarantined pest. New §19.171 designates
the boundary of the quarantine area. New §19.172 lists the host plants
for the quarantined pest. New §19.173 provides for the treatment and
movement of the quarantined articles, and new §19.174 provides the trigger
to declare an infestation and the treatment requirements. New §19.174
also provides for destruction or treatment of quarantined articles by the
department if such articles are required to be destroyed or treated and the
producer or handler refuses to destroy or treat the quarantined articles.
This section also notes that authority to assess administrative penalties
for violations of §§19.170 - 19.174 is provided in Texas Agriculture
Code §12.020. The department may propose adoption of this rule on a permanent
basis in a separate submission.
The new sections are adopted on an emergency basis under the
Texas Agriculture Code, §71.004, which provides the Texas Department
of Agriculture with the authority to establish emergency quarantines; §71.007
which authorizes the department to adopt rules as necessary to protect agricultural
and horticultural interests, including rules to provide for specific treatment
of a grove or orchard or of infested or infected plants, plant products, or
substances; §12.020 which authorizes the department to assess administrative
penalties for violations of Chapter 71; and the Texas Government Code, §2001.034,
which provides for the adoption of administrative rules on an emergency basis,
without notice and comment.
§19.170.Quarantined Pest.
The quarantined pest is the sapote fruit fly, Anastrepha serpentina
(Wiedemann) in any living stage of development.
§19.171.Quarantined Areas.
The quarantined area is that portion of Hildago County bounded by a
line drawn as follows: Beginning at the intersection of South Cage Boulevard
and the Rio Grande River; proceeding northwesterly along the Rio Grande River
17.11 miles; then continuing in a straight northerly imaginary line to the
intersection of Aloe Vera and Sunrise Street; then continuing northeasterly
in a straight imaginary line to the intersection of Victoria and Davina Street;
then northwesterly in a straight imaginary line to the intersection of Farm
Road 495 and North Stewart Road; then continuing in a straight northeasterly
imaginary line to the intersection of Mile 4 North Road and North Ware Road;
then easterly along Mile 4 North Road (also known as West Alberta Road) to
its intersection with South I Road; then southerly along South I Road to its
intersection with West Earling Road; then easterly along West Earling Road
to its intersection with North San Juan Road; then southerly along North San
Juan Road to its intersection with East Ferguson Avenue; then easterly along
East Ferguson Road to its intersection with East Gasline Road; then southerly
along East Gasline Road to its intersection with East Nebraska Road; then
easterly along East Nebraska Road to its intersection with North Morningside
Road; then southerly along North Morningside Road to its intersection with
Expressway 83; then easterly along Expressway 83 to its intersection with
North Alamo Road; then northerly along North Alamo Road to its intersection
with Earling Road; then westerly along Earling Road to its intersection with
North Morningside Road; then northerly along North Morningside Road to its
intersection with East Curve Road; then easterly along East Curve Road to
its intersection with Alamo Road; then northerly along Alamo Road to its intersection
with Mile 17 Road North; then westerly along Mile 17 Road North to its intersection
with Sharp Road; then northeasterly along Sharp Road to its intersection with
Mile 18 Road North; then easterly along Mile 18 Road North continuing in a
straight imaginary line to the intersection of Mile 17 1/2 Road North and
Mile 6 Road; then southerly along Mile 6 Rd West to its intersection with
Mile 17 Road North; then easterly along Mile 17 Road North to its intersection
with West Broadway Street; then southerly along West Broadway Street to its
intersection with State Highway 107; then easterly along State Highway 107
to its intersection with Mile 4 Road West; then southerly on Mile 4 Road West
to its intersection with Mile 13 1/2 North; then easterly along Mile 13 1/2
North to its intersection with Farm Road 1015; then southerly along Farm Road
1015 to its intersection with Expressway 83; then westerly along Expressway
83 to its intersection with South Bridge Avenue; then southerly along South
Bridge Avenue to its intersection with East Eighth Street; then westerly along
East Eighth Street to its intersection with South Boarder Avenue; then southerly
along South Border Avenue to its intersection with Mile 6 North; then westerly
along Mile 6 North to its intersection with Midway Road; then southerly along
Midway Road to its intersection with Lott Road; then westerly along Lott Road
continuing in a straight imaginary line to the intersection of FM 907 and
Resaca Road; then southerly along FM 907 to its intersection with Balli Road;
then westerly along Balli Road to its intersection with FM 2557; then southerly
along FM 2557 to its intersection with Las Milpas Road; then easterly along
Las Milpas Road to its intersection with South I Road; then southerly along
South I Road to its intersection with Hi Line Road; then westerly along Hi
Line Road to its intersection with South Cage Boulevard; then southerly along
South Cage Boulevard to the point of beginning.
§19.172.Quarantined Articles.
The quarantined pest is a quarantined article. The fruit or berries
of all of the following plants originating from the quarantined area are quarantined:
Figure: 4 TAC §19.172
§19.173.Restrictions.
(a) Movement of quarantined articles.
(1)
General. Quarantined articles originating from the quarantined
area are prohibited entry into adjoining areas, except as provided in paragraph
(2) of this subsection.
(2)
Exceptions. Commercial citrus fruit may be moved outside
the quarantined area in fruit bins clearly marked with United States Department
of Agriculture (USDA) approved color tags.
(b)
Treatment of fruit. The fruit shall be treated using one
of the following three options:
(1)
Fumigation. The fruit must go directly to an approved treatment
facility. The fruit shall be segregated in a packinghouse and fumigated as
prescribed in the Texas Valley Mexican Fruit Fly Protocol 2002-2003. A copy
of this protocol may be obtained at the department's Valley Regional Office,
900-B East Expressway 83, San Juan, Texas 78589.
(2)
Bait Sprays. The fruit shall be treated in the field using
approved bait sprays at 10 to 12 day intervals starting at least 30 days before
harvest and continued throughout the harvest period or until the quarantine
is revoked. The department or the USDA may extend the treatment interval to
reflect prolongation of a fly generation especially during winter. Once all
fruit has been harvested from the grove, spray applications may cease. Growers
may enter into a compliance agreement with the USDA or the department to treat
and handle the fruit as prescribed.
(3)
Fruit Processing. Fruit should be covered by a tarpaulin
if moved outside the quarantined area for juicing under guidelines prescribed
by the department or the USDA.
§19.174.Establishment of Quarantined Areas; Core Area; Treatment of Infestation; Destruction of Quarantined Articles.
(a)
When two or more adults of the quarantined pest within
a time period equal to one fly generation and within 3 miles of each other,
a mated female or one larva is detected, a quarantine area is established
around the detection site. The quarantine area shall cover an area of approximately
81 square miles (4.5 miles around the detection site). Within the quarantine
area, a core area of 1 square mile will be established around each detection
site. The core area shall be treated by ground or aerial sprays as prescribed
by the department or the USDA. Within the core area, the spray program shall
restart if an additional quarantine pest is detected.
(b)
The owner, orchard manager or packing sheds may bear all
treatment expenses.
(c)
The owner or the orchard manager of orchards located in
a core area shall enter into a compliance agreement with the department or
the USDA to make the required treatments and handle the fruit as prescribed.
(d)
Homeowners shall not be required to pay treatment expenses
when flies are detected in urban areas. Fruit will be handled as prescribed
by the department or the USDA.
(e)
Wholesalers, retailers, packing sheds, street fruit vendors,
and flea market stall operators shall handle the fruit as prescribed by the
department or USDA.
(f)
The quarantined pest shall be considered eradicated from
the quarantined area when additional flies are not detected beginning with
the most recent fly detection and continuing for three subsequent generations.
The number of days required to complete a fly generation will vary based on
a day-degree model.
(g)
In addition to assessment of administrative penalties as
provided in the Texas Agriculture Code, §12.020, a violation of this
subchapter may require destruction of quarantined articles.
(h)
If the producer or handler of quarantined articles required
to be destroyed or treated refuses to destroy or treat the articles, the department
may treat the quarantined articles and charge the costs of the treatment to
the producer or handler, or may deliver an Order of Seizure and Destruction
to the producer or handler, in accordance with the Texas Agriculture Code, §71.0091,
providing notice to the producer or handler of their right to appeal the destruction
of quarantined articles pursuant to §71.010, explaining seizure of the
articles pending their destruction. The department may charge the costs of
the seizure and holding of the articles until the time in which an appeal
may be filed and, if filed, decided. If no appeal is filed, the seized articles
may be destroyed after the deadline to file has passed. If the producer or
handler does file an appeal and the court rules in the department's favor,
the department may then destroy the seized articles. In both cases the department
may charge the cost of the destruction to the producer or handler, in accordance
with the Texas Agriculture Code, §71.0091.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on February 24, 2003.
TRD-200301366
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective Date: February 24, 2003
Expiration Date: May 24, 2003
For further information, please call: (512) 463-4075