PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS

SUBCHAPTEr E. DATE PALM LETHAL DECLINE QUARANTINE

4 TAC §§19.51 - 19.53

The Texas Department of Agriculture (the department) proposes amendments to §§19.51 - 19.53, concerning the department's Date Palm Lethal Decline Quarantine regulations. The department adopted amendments to this quarantine on an emergency basis on December 3, 2008, as published in the December 19, 2008, issue of the Texas Register (33 TexReg 10263). The department withdrew these emergency amendments to the quarantine and resubmitted revised amendments on an emergency basis on April 7, 2009, as published in the April 24, 2009, issue of the Texas Register (34 TexReg 2577) and are now in effect. The current Date Palm Lethal Quarantine was developed in 1976, and is outdated and not based on current science and regulatory practice. Although the current quarantine has not been utilized broadly due to a low prevalence and rare occurrence of the disease in Texas, the department is updating the quarantine to conform to current information, science and regulatory practices.

The proposed amendments establish a regulatory practice utilizing an immediate buffer area and an extended buffer area surrounding any infected trees in Texas. Similar to the current quarantine regulation, the immediate buffer area will be the area within one mile of the infected tree. The extended buffer area will be the area within two miles of the infected tree and outside the one-mile immediate buffer area. The proposed amendments will operate as follows regarding each regulated area within the quarantine.

Regarding the immediate buffer area, no trees within this area will be allowed to move outside the area for at least six months following the removal of the infected tree. In order to be allowed to move trees outside the immediate buffer area, a treatment regiment extending for at least three months, during the six-month period, will be required following the removal of an infected tree. This treatment is added because the vectors, primarily leafhoppers, which are present in the vicinity of an infected tree, pose the greatest risk of spreading the disease.

Regarding the extended buffer area, a phytosanitary certificate must accompany shipment from the extended buffer area to outside. This requirement expires following the six-month period from the detection date assuming the treatment practices in the immediate buffer area are conducted as described herein.

Regarding areas inside the quarantine zone but outside two buffer areas, shipments will be unrestricted.

The proposed amendments also add Nueces County of Texas and the entire State of Florida to the quarantined area and the requirements for quarantined palms entering Texas. Nueces County is added to the quarantine because the disease has been detected in that county. The State of Florida is added to the quarantine because scientists from the University of Florida, Institute of Food and Agricultural Sciences recently confirmed the phytoplasma, which causes the date palm lethal decline in Texas also occurs in five Florida counties. Furthermore, the State of Florida has not enacted an intra-state quarantine to restrict movement of the infected host plants and potential vectors from spreading to disease-free counties. Consequently, instead of quarantining just the infected counties, the Texas Department of Agriculture has opted to quarantine the entire State of Florida. In addition, the Florida Department of Agriculture and Consumer Services, Division of Plant Industry declined to implement the requirements Texas uses when an infected tree is found, such as removal of the infected tree, a six-month prohibition on movement of quarantined palms located within one mile of the infected tree and the use of the treatment methods mentioned above. Consequently, the entry requirements for the quarantined palms from Florida into Texas were developed in consultation with the Florida Division of Plant Industry. Silver date palm Phoenix sylvestris, queen palm Syagrus romanzoffiana, and cabbage palm or sabal palm Sabal palmetto, are added to the list of quarantined articles since Florida scientists recently confirmed the occurrence of date palm lethal decline in these species.

The proposed amendments are identical to the emergency amendments adopted on April 7, 2009, except the former clarify that the requirements listed are for movement of quarantined articles outside the two-miles from an infected tree. The amendments add silver date palm, queen palm, and cabbage palm or sabal palm to the list of quarantined articles, add Nueces County of Texas and the State of Florida to the quarantined areas, and prescribe entry requirements for movement of the quarantined articles from Florida into Texas, as well as outlines requirements to move quarantined articles from a quarantined area of Texas to a free area of Texas. The amendments specify that a phytosanitary certificate issued by the department is required only upon detection of an infected tree and over a six-month duration to move quarantined palms outside two miles of an infected tree. Because Florida lacks intra-state quarantine and the state refrains from destroying the infected trees, all Florida shipments of the quarantined palms are required to be accompanied by a phytosanitary certificate.

The proposed amendments outline necessary steps to prevent introduction and artificial spread of the date palm lethal decline into non-infected areas of Texas. The palm nursery industry, landscapers, homeowners, and others who use the quarantined palms are in peril because without these amendments, chances of these palms becoming infected with the disease increase significantly. Treatment options to control the disease are very limited. Moreover, once the spear leaf has died due to the disease, scientists recommend removal of the tree as soon as possible.

The proposed amendment to §19.51 adds Nueces County of Texas and the State of Florida to the quarantined areas. The proposed amendment to §19.52 adds silver date palm, queen palm, and cabbage palm or sabal palm to the list of quarantined articles. The proposed amendment to §19.53 deletes the option, which requires a treatment of quarantined palms located more than two miles from an infected tree and adds a treatment requirement for movement of quarantined palms located within one mile from an infected tree. The proposed amendment replaces the special permit provision with a phytosanitary certificate, clarifies that a phytosanitary certificate is required over a six-month period for movement of the quarantined articles located more than one mile and less than two miles from an infected tree to outside this area, prescribes entry requirements for quarantined palms from Florida into Texas, prohibits quarantined palms within two miles of a known infected tree in Florida, and requires the quarantined palms in Florida located more than two miles from a known infected tree to be treated within 48 hours of the shipment.

Dr. Shashank Nilakhe, State Entomologist, has determined that for the first five-year period the amended sections, as proposed, are in effect, there will be no fiscal implication for the state or local government as a result of enforcing or administering the new sections.

Mr. Nilakhe also has determined that for each year of the first five years the amended sections, as proposed, are in effect, the public benefit anticipated as a result of enforcing the new sections will be to prevent introduction of the date palm lethal decline into Texas. It is estimated that five palm nurseries are located in Nueces County, Texas. Of these five nurseries, one is a large business and the remaining four meet the criterion of small business as well as a micro-business as defined in the Texas Government Code §2006.001(2) and §2006.001(1), respectively. As mentioned above, the date palm lethal decline rarely occurs in Texas, and the measures used to combat the disease apparently lead to disease eradication. If the disease is found at any of these five nurseries or at a retail garden store, there will be adverse economic impact since the quarantined articles are prohibited from movement for six months. However, it is not possible to quantify such economic impact. To move the quarantined palms located within two miles of an infected tree outside the area, will require treatment for leafhoppers, the apparent vector of the disease, at a cost of about $200 per acre. Since it is not possible to predict the quantity of palms to be shipped from this area, and the frequency of the disease occurrence, the treatment costs can not be estimated. For the same reasons, the treatment cost to move quarantined palms located within one mile of an infected tree in Cameron, Hidalgo and Willacy counties can not be estimated. Alternative methods to the insecticidal treatments were considered to reduce adverse impact on small businesses. None of the alternative methods, such as biological control and cultural control, would provide effective, economical, and timely control of the leafhoppers.

The treatment cost to control leafhoppers, will be borne by Florida nurseries shipping the quarantined articles to Texas. The cost to control leafhoppers would be reduced significantly since many of the pesticides commonly used for controlling mites and insect pests in palm nurseries would also control leafhoppers. The Florida Division of Plant Industry's cost for inspection and issuance of a phyosanitary certificate will be borne by the nurseries. The Division of Plant Industry charges $50 and the mileage cost for issuance of a phytosanitary certificate. A nursery may consider this cost as an overhead, or may recoup it by adding to the relevant shipment, by distributing over all the shipments, or by some other means. If a Florida nursery opts to recoup the certification cost, fewer than 100 Texas small businesses and micro-businesses which import Florida palms might experience a slight increase in the palm prices. However, it is not possible to quantify such an increase because of the different size of nurseries, different volume of shipments, various species and sizes of palms shipped, price variation between palm species, nursery-specific pest management practices employed, nursery-specific management decisions, etc. If a nursery opts to add the phytosanitary certificate cost such as $75 to a small shipment, such as five palm plants, it would have a greater negative economic impact on micro-businesses than small businesses. Furthermore, statistics on small versus large shipment of palms is not available.

Comments on the proposal may be submitted to Dr. Shashank Nilakhe, State Entomologist, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The amendments are proposed under the Texas Agriculture Code, §71.001, which authorizes the department to establish a quarantine against out-of-state diseases and pests; and §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.

The code affected by the proposal is the Texas Agriculture Code, Chapter 71.

§19.51.Quarantined Areas.

The quarantined areas are Cameron, Hidalgo, Nueces, and Willacy counties [Counties] of Texas , and the State of Florida.

§19.52.Quarantined Articles.

(a) (No change.)

(b) All parts of the Canary Island date palm, Phoenix canariensis ; silver date palm, Phoenix sylvestris; queen palm, Syagrus romanzoffiana; cabbage palm or sabal palm, Sabal palmetto; and [all parts of ] the date palm, Phoenix dactylifera are quarantined.

(c) (No change.)

§19.53.Restrictions.

(a) (No change.)

(b) Exemptions.

(1) Palm seed are exempt from the provisions of this subchapter.

(2) Quarantined articles from quarantined areas of Texas are exempt from the requirements of treatment and a phytosanitary certificate after a six-month absence of an infected tree or when located more than 2 miles from an infected tree.

(c) Exceptions [Exception].

(1) When an infected tree has been detected, shipments [ Shipments] of quarantined palms from quarantined areas of Texas specified in subparagraphs (A) or (B) of this paragraph may be allowed to move [movement into the free areas of Texas under special permit from the department] under the following conditions.

(A) Quarantined palms located within one mile of a known infected tree may:

(i) not move [from the quarantined area] for a period of six months following removal of an infected tree; and [or]

(ii) have been treated, as approved by the department, for a minimum period of three months during the six-month period following the removal of an infected tree; and

(iii) [(ii)] be allowed to move after six months if no other infected trees are found within a mile radius [and the conditions specified in subparagraphs (B) or (C) of this paragraph are met].

(B) Quarantined palms located more than one mile and less than two miles from known infected trees must:

(i) - (ii) (No change.)

(iii) must be treated within 48 hours prior to [ on the day of] movement; and[.]

(iv) be allowed to move when accompanied by a phytosanitary certificate over a three-month period since completion of the treatment.

(C) A phytosanitary certificate is not required for shipments made beyond six months since detection of an infected tree.

[(C) Quarantined palms located more than two miles from known infected trees must:]

[(i) be inspected within 24 hours prior to shipment with no symptoms of lethal decline apparent; and]

[(ii) must be treated on the day of movement.]

(2) (No change.)

(3) Shipments of quarantined palms from Florida may be allowed movement into Texas when accompanied by a phytosanitary certificate issued by the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, under the following conditions.

(A) Quarantined palms located within two miles of known infected trees are prohibited.

(B) Quarantined palms located more than two miles from known infected trees:

(i) must be inspected within 24 hours prior to shipment with no symptoms of date palm lethal decline apparent;

(ii) must be under a prescribed pest management program for six weeks prior to shipment and receive a final treatment within 48 hours prior to movement; and

(iii) tools used in pruning and handling of host plants must be disinfected with one part liquid household bleach (sodium hypochlorite) to four parts water or some other suitable disinfectant.

This agency hereby certifies that the proposal 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 May 8, 2009.

TRD-200901757

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: June 21, 2009

For further information, please call: (512) 463-4075