4 TAC §§19.170 - 19.178
The Texas Department of Agriculture (the department) adopts
on an emergency basis new §§19.170-19.178, 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 department filed on February 24, 2003,
a sapote fruit fly emergency quarantine, new §§19.170-19.174, published
in the March 7, 2003, issue of the
Texas Register
(28 TexReg 2001), which is being withdrawn and replaced with new this
submission establishing new §§19.170-19.178.
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 movement of the
quarantined articles outside the quarantined area. New §19.174 provides
the trigger to declare an infestation and establish a quarantined area.. New §19.175
provides for the establishment of core areas. New §19.176 provides requirements
for the handling of fruit inside a quarantined area. New §19.177 provides
eradication criteria. New §19.178 provides violations penalties for failure
to comply with the quarantine restrictions or requirements. 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 ntersection 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.Movement of Quarantined Articles Outside the Quarantined area.
Quarantined articles originating from the quarantined area are prohibited
entry into adjoining areas unless 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
and the shipment accompanied with proper documentation from the department
or USDA if fruit is moved outside the quarantined area for juicing.
§19.174.Establishment of Quarantined Areas.
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).
§19.175.Establishment of Core Areas
(a)
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.
§19.176.Handling of Fruit Inside Quarantined Areas
(a)
Homeowners shall not be required to pay treatment expenses
when flies are detected in urban areas. Fruit produced in the backyard shall
not be moved from the premises except under written authorization of the department
or the USDA.
(b)
Wholesalers, retailers, packing sheds, street fruit vendors,
and flea market stall operators shall handle the fruit as prescribed below.
(1)
General. Fruit must be safeguarded from the sapote fruit
fly egg laying by using air curtains, screens of appropriate mesh, plastic
sheets, enclosed boxes or other prescribed methods.
(2)
Fruit produced inside the quarantined area must have proof
of origin and documentation to show the fruit received prescribed fumigation
or bait spray treatment.
(3)
Fruit produced outside the quarantined area may enter the
quarantined area without a regulatory treatment mentioned in paragraph (2)
of this subsection unless specified otherwise.
(c)
Nursery plants offered for sale shall be free of quarantined
fruits or berries.
§19.177.Eradication Criteria.
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.
§19.178.Violations and Penalties.
A person who fails to comply with quarantine restrictions or requirements
or a department order relating to the quarantine may be subject to administrative
penalties not to exceed $5000 per occurrence, civil penalties not to exceed
$10,000 per occurrence, or criminal prosecution. Each day a violation occurs
or continues may be considered a separate occurrence. Additionally, the department
is authorized to seize and treat or destroy, or order to be treated or destroyed,
any quarantined article that is found to be infested with the quarantined
pest or, regardless whether infested or not, transported out of the quarantined
area in violation of these rules. Treatment or destruction charges, including
those incurred by the department, are chargeable to the owner of the quarantined
article to be treated or destroyed. An order under the quarantine may be appealed
according to procedures set forth in §71.010 of the Texas Agriculture
Code.
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 March 10, 2003.
TRD-200301660
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective Date: March 10, 2003
Expiration Date: June 8, 2003
For further information, please call: (512) 463-4075