Part 1.
TEXAS DEPARTMENT OF AGRICULTURE
Chapter 21.
CITRUS
The Texas Department of Agriculture (the department) proposes amendments
to §§21.1, 21.2, §21.6, §21.21, §21.30, §21.34, §21.36
and new §§21.8 and 21.9, all concerning citrus quarantines, citrus
quality, or the citrus budwood certification program. The amendments are proposed
to clarify existing sections and to add new requirements related to quarantines,
budwood, and citrus maturity. The new sections define labeling and record
keeping requirements for regulated articles.
Section 21.1 defines terms used in Chapter 21 Subchapter A and is amended
to include new definitions of the terms "distribute or distribution, regulated
article, retail buyer, seizure, and transport." Section 21.30 defines terms
used in Chapter 21 Subchapter C and is amended to include new definitions
of the terms "certified budwood and non-certified budwood" and amended definitions
of "certified citrus nursery tree."
The amendment to §21.2 is being proposed to remove the Asian citrus
psyllid as a quarantined pest. This species was found to be established this
year throughout the Rio Grande Valley of Texas in several locations. Another
psyllid species,
trioza erytreae
, is added
as a quarantined pest.
The amendments to §21.6 are being proposed to allow the citrus industry
in Texas to choose from a larger selection of budwood that is free from pests
and diseases. The acquisition of budwood into Texas can be a lengthy process.
It requires that before budwood can be shipped into Texas, the source must
present a certificate showing all required testing has been completed and
confirmed by a federal or state agency approved by the department. Currently,
only the California Citrus Clonal Protection Program (CCCPP) is exempt from
requirements listed in subparagraphs (A) and (B) and is able to issue a certificate
confirming the budwood is pest and disease free. The proposed revision will
add the USDA-ARS National Clonal Germplasm repository for Citrus and Dates
(USDA-ARS-NCGR) as another entity exempt from subparagraphs (A) and (B) and
that will be able to issue a certificate confirming the budwood is pest and
disease free. The amendment to §21.6(4) allows citrus plants to enter
Texas on a temporary basis for display purposes only, provided they are moved
under a special permit issued by the department.
The amendments to §21.21 are proposed to combine the charts used for
juice requirements of seedless and seeded grapefruit varieties. Present day
grapefruit cultivars have fewer seeds and are not considered to be excessively
seedy, therefore the juice requirements for seedless varities of grapefruit
is proposed for use on all grapefruit. Citrus maturity standards are also
proposed to be in effect during the entire year to ensure citrus offered for
sale in Texas is mature and fit for consumption.
The amendments to §§21.34 and 21.36 are being proposed to provide
further clarification to proper procedures within the citrus budwood certification
program. The amendment to §21.34 provides for the exchange of budwood
between persons when certified budwood varieties are not yet available from
either the foundation grove or increase block and such budwood has been tested
and found to be free of Tristeza virus. This exchange is limited and cannot
be distributed or resold further. The amendment to §21.36 does not limit
the budwood record keeping requirements to only commercial nurseries. Record
keeping is primarily for tracking the movement of propagative material.
New §21.8 defines the labeling requirements necessary to track and
identify regulated articles; provides for an alternative to the labeling requirement;
specifies administrative penalties that apply for non-compliance; and specifies
requirements for record keeping to ensure that regulated articles can be easily
identified as produced in Texas.
New §21.9 specifies requirements for record keeping; provisions for
a rebuttable presumption; procedures for rebutting a presumption; and provisions
for seizure and destruction of regulated articles.
David Kostroun, Assistant Commissioner for Regulatory Programs, has determined
that for the first five-year period the proposed amendments and new sections
are in effect, there is no anticipated fiscal impact on state or local governments
as a result of administration and enforcement of the sections.
Mr. Kostroun has also determined that for each year of the first five
years the proposed amendments and new sections are in effect, the public benefit
anticipated as a result of administering and enforcing the new and amended
sections is an adequate supply of Texas grown citrus trees that are free of
serious diseases and pests that could threaten the citrus industry as well
as citrus fruit that is mature and fit for consumption. There will be a cost
to some growers and retailers required to comply with the proposal. These
costs cannot be determined at this time due to the variable record keeping
and identification practices used in the industry. Most commercial nurseries
currently label plants with some of the required information and can include
additional information that may be required on the same label. Making changes/additions
to labels may be accomplished at little to no additional cost. Nurseries also
have the option to identify the plants during production as prescribed within
a "plan" developed by the grower and approved by the department, in lieu of
an identification tag or label. Most growers and retailers maintain sufficient
information to meet record keeping requirements. Costs for additional record
keeping cannot be determined because of the wide range of record keeping systems
maintained by growers and retailers.
Comments on the proposal may be submitted to David Kostroun, Assistant
Commissioner for Regulatory Programs, Texas Department of Agriculture, P.O.
Box 12847, Austin, Texas 78711. Comments must be received no later than 30
days from the date of the publication of the proposal in the
Texas Register
.
Subchapter A. CITRUS QUARANTINES
4 TAC §§21.1, 21.2, 21.6, 21.8, 21.9
The amendments to §§21.1, 21.2, 21.6, and new §§
21.8 and 21.9 are proposed in accordance with the Texas Agriculture Code (the
Code), §71.009, which provides the department with the authority to adopt
rules as necessary for the seizure, treatment, and destruction of plants,
plant products, and other substances for the effective enforcement and administration
of Chapter 71; §71.010 which provides for the appeal process to be followed
for violation cases of these rules; §94.003 which provides the department
with the authority to develop and adopt rules related to the requirements
of citrus fruit for human consumption; §73.002 which provides for the
state to use all constitutional measures to protect the citrus industry from
destruction by pests and diseases; and §19.006 which provides the department
with the authority to adopt rules necessary to administer the citrus budwood
certification program.
The code that is affected by the proposal is Texas Agriculture Code, Chapters
19, 71, 73 and 94.
§21.1.Definitions.
In addition to the definitions set out in Texas Agriculture Code and
Texas Administrative Code, the following words and terms, when used in this
subchapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
(No change.)
(2)
Citrus identification plan
-- A department approved plan for the identification and tracking of citrus
plants produced for the purpose of sale or distribution.
(3)
Distribute or distribution
-- To supply, sell, deliver, lease, provide, or otherwise transfer possession
of a regulated or quarantined article.
(4)
Non-rebuttable presumption
-- A presumption that may not be challenged with evidence.
(5)
Rebuttable presumption -- A
disputable presumption or a presumption which may be challenged with evidence.
(6)
Regulated article -- Any citrus
plant grown for the purpose of sale or distribution.
(7)
Retail buyer -- A person who
receives a regulated article other than for the purpose of resale.
(8)
[
(9)
Seizure -- To take official
control of regulated or quarantined articles either determined to have been
transported or carried from a quarantined area in violation of a quarantine
order or determined to be infected with a disease or insect pest, at any stage
of development, dangerous to a citrus plant, citrus plant product, or citrus
substance, without regard to whether the citrus plant, citrus plant product,
or citrus substance comes from an area known to be infested.
(10)
Transport -- Carry, move,
or transfer by motor vehicle, boat, or other conveyance licensed or otherwise
authorized for use on a road, highway, or waterway of the United States or
an individual state.
§21.2.Quarantined Pests and Diseases.
(a)
(No change.)
(b)
Insects and mites. For the purposes of these regulations,
the quarantined insects and mites injurious to citrus include the following:
Brown citrus aphid, Toxoptera citricida; Branch and twig borer, Melalgus confertus;
African psyllid, Trioza erytreae
[
§21.6.Restrictions.
(a)
General. In addition to any other applicable restrictions
imposed by regulations adopted under Chapter 71, Texas Agriculture Code, quarantined
articles may not be transported into Texas or
, within Texas,
into
the citrus zone except as outlined in subsections (b) and (c) of this section.
(b)
(No change.)
(c)
Exceptions.
(1)
(No change.)
(2)
Budwood of citrus varieties not existing in Texas may be
shipped to Texas from Florida, California, or outside the United States under
the following conditions:
(A) - (D)
(No change.)
(E)
in addition to the requirements outlined in subparagraphs
(A), (B), and (C) of this paragraph, shipments originating in Florida or California
shall include a certificate from the origin state's department of agriculture
specifying that the budwood is free of pests and diseases listed in this subchapter.
A copy of the certificate shall be sent to and approved by the Texas Department
of Agriculture before shipment of the budwood to Texas. However, budwood originating
from the California citrus clonal protection program (CCCPP)
or the USDA-ARS
National Clonal Germplasm Repository for Citrus and Dates (USDA-ARS-NCGR)
will be exempt from the requirements in subparagraphs (A) and (B) of
this paragraph, but will require a certificate from the CCCPP
or the
USDA-ARS-NCGR
specifying that the budwood is free of pests and diseases
listed in this subchapter instead of the state's certificate.
(3)
(No change.)
(4)
Citrus plants may enter Texas
on a temporary basis for display purposes only, provided they move under the
conditions of a special permit issued by the department.
(A)
A request for a special permit
must be submitted in writing to Texas Department of Agriculture, Attention:
Pest Management Programs, P. O. Box 12847, Austin, Texas 78711. The request
shall be received not later than 30 days prior to proposed date of entry into
the state and shall include the following information:
(i)
name and address of requestor;
(ii)
name and address of location where plants will
be displayed in the state;
(iii)
date when plants will enter the state as well
as the date the plants will exit the state;
(iv)
common and scientific name of plants to be
displayed, including variety or cultivar; and
(v)
number of each type of plant to be displayed.
(B)
Each request will be considered on a case by
case basis and if approved by the department, a written permit will be issued.
Permit conditions will include but may not be limited to the following:
(i)
Citrus plants may not be moved into Texas from
an area quarantined for citrus canker or any exotic fruit fly pest;
(ii)
Within 7 days prior to entering the state,
all citrus plants must be treated with a foliar insecticide and a soil drench
to ensure they are free of all pests;
(iii)
Plants must be inspected and found free of
all pests in all stages of development by the origin state department of agriculture
and a phytosanitary certificate issued by the origin state indicating the
treatment product used, rate applied and date of application. A non-destructive
tag written in waterproof ink identifying plants inspected and certified shall
be attached to all plants by the origin state department of agriculture;
(iv)
The special permit must accompany the shipment
at all times and be presented to a department employee upon request; and
(v)
Upon return to origin, plants must be re-inspected
by the origin state department of agriculture to verify all permitted plants
were returned. The origin state department of agriculture must submit written
verification of inspection findings to the department.
§21.8.Labeling Requirements and Non-Rebuttable Presumption.
(a)
General.
(1)
Each regulated article sold, distributed or transported
within this state or grown for the purpose of sale or distribution shall have
attached to the article, or to the container in which the article is planted,
a waterproof tag or label upon which is legibly printed in permanent lettering
the words "Produced in Texas" and the Texas Nursery/Floral Registration Certificate
number of the business location where the regulated article was produced for
sale or distribution.
(2)
The absence of a tag or label required by subsection (a)
of this section creates a non-rebuttable presumption that the regulated article
is a quarantined article and shall be destroyed in accordance with the applicable
provisions of section 71.0091 of the Code.
(3)
A regulated article with a tag or label required by subsection
(a) of this section that is determined by the inspector or other agent of
the department to have not been produced at the Texas business location represented
by the registration number on the tag or label shall be seized and may be
destroyed pursuant to section 21.9 (g) of this title (relating to Record Keeping;
Rebuttable Presumption and Seizure), in accordance with the applicable provisions
of section 71.0091 of the Code.
(4)
The presence of a tag or label attached to a regulated
article, or to a container in which the regulated article is planted, that
states that the regulated article did not originate in Texas, including "product
of," "produced in," "originated in," or "grown in" any geographic area outside
of Texas, creates a non-rebuttable presumption that the regulated article
is a quarantined article and shall be destroyed in accordance with the applicable
provisions of sections 71.0091 of the Code.
(5)
Each failure to comply with a requirement of this section
constitutes a separate violation for which an administrative penalty may be
assessed and each day a violation continues or occurs may be considered a
separate violation.
(b)
Exemptions.
(1)
Commercial citrus. Within the Texas citrus zone, commercial
citrus production areas where trees are immediately field planted in groves
and cultivated for commercial fruit production are exempt from the requirements
of this subchapter.
(2)
Identification. In lieu of identification tags during production,
a nursery may develop a citrus identification plan, as approved by the department,
that defines procedures and methods used to identify the citrus plants under
production at the location. Identification tags, as provided in this section,
will be required once the citrus plants are sold or distributed.
(3)
Budwood.
(A)
Budwood used to propagate trees for personal use and not
for resale is not subject to the record keeping requirement in §21.36
of this title (relating to Record Keeping). The original invoice at time of
sale for the parent tree may be used to verify the tree was produced in Texas.
(B)
The labeling of budwood pieces for sale by the foundation
grove manager is specified in §§21.34-21.35 of this title (relating
to Citrus Budwood Certification and Labeling of Certified Citrus Nursery Trees).
§21.9.Record keeping; Rebuttable Presumption; and Seizure.
(a)
Each lot of regulated articles distributed or transported
within this state shall have a unique identifying number and be accompanied
by an invoice, receipt, or other document(s) containing the following information:
(1)
the identifying number of each lot of the regulated articles;
(2)
the name, address, and telephone number of the producer
of the regulated articles;
(3)
if in transit, the name, address, and telephone number
of the person to whom the regulated articles are to be delivered;
(4)
the genus or widely recognized common name of the regulated
article(s) and the number of individual regulated articles distributed or
transported; and
(b)
A copy or copies of the document or documents required
by subsection (a) shall be provided to each person, other than a retail buyer,
receiving all or a portion of the lot of regulated articles.
(c)
A person, other than a retail buyer, shall not accept a
distribution of regulated articles from any person unless accompanied by the
documentation required by subsection (a) and/or subsection (b) of this section.
(d)
Any person or organization who produces, sells, leases,
or offers for sale or otherwise receives, distributes, or holds regulated
articles for sale to any business outlet for resale purposes shall maintain
a copy or copies of the document or documents required by subsection (a) and/or
subsection (b) of this section for a period of at least two years after the
sale or other distribution of the regulated article. Copies of the documents
are not required to be maintained by the end user (grower or homeowner).
(e)
A person required to maintain records under subsection
(d) of this section shall, upon written request of the department, deliver
copies of the records by mail, facsimile, commercial carrier, hand-delivery,
or other means during normal business hours.
(f)
A rebuttable presumption that the regulated articles, for
which records are to be maintained under subsection (d) of this section, constitute
quarantined articles is created if:
(1)
the distributor fails to produce records or copies of records
pursuant to a written request under either subsection (e) or subsection (f)
of this section; or
(2)
a regulated article with a tag or label required by this
subchapter does not correspond with the records required to be maintained
under subsection (d) of this section.
(g)
Regulated articles deemed quarantined articles under subsection
(f) of this section shall be seized by the department and shall not be further
distributed without the written permission of the department.
(1)
The department shall deliver by hand to the owner, or a
representative of the owner at least 18 years of age, at the owner's place
of business, an order notifying the owner of the seizure, listing the number
and description of the regulated articles seized, stating the reason for seizure
and the time period for rebutting the presumption set forth in subsection
(f) of this section, and bearing the signature of the department's inspector
or representative seizing the regulated articles..
(2)
The presumption that regulated articles are quarantined
articles may be rebutted by providing:
(A)
adequate documentation or other assurances regarding the
state and county of origin of the regulated articles and the chain of custody
of the regulated articles from origin to the person affected by the order;
or
(B)
an adequate demonstration that the plants or plant products
do not or cannot host a plant pest or plant disease for which a quarantine
has been imposed under either state or federal law.
(3)
The time period within which to rebut the presumption that
the regulated articles are quarantined articles shall vary depending on the
risk represented by the plant pest or plant disease that necessitated the
seizure and destruction order and shall be provided in writing as provided
in this section.
(4)
If the presumption established by subsection (f) of this
section is rebutted in accordance with the requirements of this section, the
seizure shall be rescinded in writing.
(5)
If the presumption established by subsection (f) of this
section is not rebutted in accordance with the requirements of this section,
the regulated articles subject to seizure shall be destroyed in accordance
with applicable provisions of section 71.0091 of the Code.
(h)
Each failure to comply with a requirement of this section
constitutes a separate violation for which an administrative penalty may be
assessed and each day a violation continues or occurs may be considered a
separate violation.
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 March 31, 2003.
TRD-200302111
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: May 11, 2003
For further information, please call: (512) 463-4075
(2)
] Rootstock -- A plant used as
the recipient understock in budding or grafting.
Citrus psilid, Diaphorina citri
]; Orange spiny whitefly, Aleurocanthus spiniferous; Avocado whitefly,
Trialeurodes floridensis; Plumeria whitefly, Paraleurodes perseae; Inconspicuous
whitefly, Bemesia inconspicua; Citrus root weevil, Pachnaeus litus; Sugarcane
root-stalk borer weevil, Diaprepes
abbreviatus
[
abbreviata
]; Rufous scale, Selenaspidus articulatus; Caribbean black scale, Saissetia
neglecta; Citrus snow scale, Unaspis citri; Oystershell scale, Lepidosaphes
ulmi; Citrus bud mite, Eriophyes sheldoni; Six-spotted mite, Eotetranychus
sexmaculatus; Yuma spider mite, Eotetranychus yumensis; Orange sawyer, Elaphidion
inerne; and Citrus thrips, Scirtothrips citri.
Subchapter B. CITRUS QUALITY