Emergency Rules Title 4

TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS

SUBCHAPTER J. RED IMPORTED FIRE ANT QUARANTINE

4 TAC §19.101

The Texas Department of Agriculture (the department) adopts, on an emergency basis, an amendment to §19.101(b) in order to expand the quarantined area for the red imported fire ant, Solenopsis invicta Buren. The department conducts annual detection surveys in the counties bordering the red imported fire ant quarantined counties to monitor the sporadic encroachment of fire ant infestations. The detection surveys conducted in 2008 and in prior years indicated that Archer, Baylor, Callahan, Clay, Coke, Coleman, Concho, Crane, Crockett, Fisher, Haskell, Howard, Irion, Lubbock, Martin, Mitchell, Nolan, Reagan, Runnels, Schleicher, Scurry, Shackelford, Starr, Terrell, Throckmorton, Upton, Ward, Wilbarger, and Winkler counties have a widespread fire ant infestation beyond containment. The emergency action will slow the artificial spread of fire ants through movement of hay and nursery-floral commodities to fire ant-free areas. The nursery-floral articles from these counties will be allowed to move to the fire ant-free areas only after USDA approved quarantine treatments. Hay may only be shipped to fire ant free areas if it is stored in a manner that prohibits direct contact with the ground.

The emergency amendment adds Archer, Baylor, Callahan, Clay, Coke, Coleman, Concho, Crane, Crockett, Fisher, Haskell, Howard, Irion, Lubbock, Martin, Mitchell, Nolan, Reagan, Runnels, Schleicher, Scurry, Shackelford, Starr, Terrell, Throckmorton, Upton, Ward, Wilbarger, and Winkler counties to the list of quarantined areas, thereby restricting the movement of quarantined articles when transported from these counties to fire ant-free areas.

The department believes that it is necessary to take this immediate action to prevent the artificial spread of the red imported fire ant into non-infested areas of Texas and other states, and adoption of this quarantine on an emergency basis is both necessary and appropriate. The nursery industry as well as the hay producers in the non-infested counties are in peril because without this emergency quarantine their chances of becoming infested increase significantly. Once infested, they would be borne with the treatment expense to ship regulated articles to non-infested areas of Texas and other states. In addition, the U.S. Department of Agriculture is pressuring the department to quarantine the infested areas to reduce artificial spread of the ants to other states.

Amended §19.101 expands the quarantined area in correspondence with the detection of the red imported fire ant outside the current quarantined area. The department will be proposing adoption of this rule amendment on a permanent basis in a separate submission.

The amended section is 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; and the Texas Government Code, §2001.034, which provides for the adoption of administrative rules on an emergency basis, without notice and comment.

§19.101.Quarantined Areas.

(a) (No change.)

(b) In addition to the areas described in subsection (a) of this section, Archer, Baylor, Brooks, Brown, Cameron, Callahan, Clay, Coke, Coleman, Concho, Crane, Crockett, Delta, Dimmit, Duval, Ector, Fisher, Haskell, Hidalgo, Howard, Irion, Jack, Jones, Kenedy, Kimble, Kinney, Lamar, La Salle, Lubbock, Mason, Martin, Maverick, McCulloch, Midland, Mills, Mitchell, Montague, Nolan, Palo Pinto, Reagan, Red River, Runnels, San Saba, Schleicher, Scurry, Shackelford, Starr, Stephens, Terrell, Throckmorton, Upton, Val Verde, Ward, Webb, Wilbarger, Willacy, Winkler, Young, and Zavala counties in Texas are quarantined.

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 November 5, 2008.

TRD-200805815

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Effective Date: November 5, 2008

Expiration Date: March 4, 2009

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

SUBCHAPTER U. ASIAN CITRUS PSYLLID QUARANTINE

4 TAC §19.411, §19.413

The Texas Department of Agriculture (the department) adopts on an emergency basis amendments to §19.411 and §19.413, concerning a quarantine for a recently introduced and highly threatening pest, Diaphorina citri Kuwayama (Homoptera: Psyllidae), the Asian citrus psyllid (ACP). The department adopted this emergency quarantine originally on August 27, 2008, and is now withdrawing the original emergency quarantine and resubmitting the quarantine in order to amend the boundaries of the quarantine due to new detections of ACP in twenty-one additional counties. The emergency amendment to §19.411 adds twenty-four counties (including the three covered in the withdrawn emergency amendment) to the list of quarantined areas. The emergency amendment to §19.413 clarifies restrictions imposed by the quarantine and changes the reference for required Federal treatment procedures. The emergency amendment to §19.411 updates the current quarantine by adding Austin, Blanco, Brazos, Colorado, DeWitt, Fort Bend, Frio, Galveston, Goliad, Gonzales, Grimes, Hays, Jackson, Jefferson, Karnes, Kendall, Kinney, La Salle, Medina, Montgomery, Presidio, Wharton, Wilson, and Zavala counties to the quarantined area, thus combating spread of the psyllid to non-infested counties. The emergency amendment to §19.411 also updates the list of quarantined areas outside of Texas; it adds all or part of Alabama, Georgia, Louisiana, Mississippi and South Carolina. The emergency amendment to §19.413 adds leaves of Kaffir lime leaf (Citrus hystri L.) as leaves intended for consumption; it also changes the reference to required treatment procedures detailed in the Animal and Plant Health Inspection Service's (APHIS) treatment schedule.

Emergency adoption of amendments to the ACP quarantine is needed to protect the Texas citrus industry from a new major disease threat from a neighboring state. ACP is the vector for Candidatus Liberibacter asiaticus, the species of bacteria that causes citrus greening (also known as huanglongbing or HLB).

Citrus greening causes reduced production of fruit, malformation of fruit, loss of plant vigor and plant death. Control of outbreaks of HLB is complicated by the fact that infected plants do not show symptoms for several months. There is no treatment for HLB; the only effective treatment is removal of infected plants coupled with elimination of ACP that can vector the disease to other citrus plants. The severity of HLB is such that the disease has made commercial production of citrus uneconomical in some parts of the world.

Citrus greening and ACP were unknown in the U.S. until recently. In August 2005, seven years following the first detection of ACP in Florida, that state became the first in the U.S. to be infected with HLB. Currently the whole state of Florida is infected and is prohibited by Federal quarantine from exporting citrus to any citrus producing state.

On May 29, 2008, the USDA confirmed the presence of ACP in southern Louisiana. On June 12, 2008, HLB was confirmed in one citrus tree in Louisiana's Orleans Parish. Subsequent surveys found ACP in 12 Louisiana parishes and disclosed HLB (but no ACP) in Washington Parish, Louisiana. Federal and Louisiana quarantines currently cover the ACP and HLB infested parishes of Louisiana.

Some Texas counties have become infested with ACP, although HLB has not yet been detected in Texas. In 2006-2007 the Texas A&M University-Kingsville Citrus Center (TAMUKCC) in Weslaco surveyed numerous sites in Texas for ACP and HLB; that survey disclosed ACP (but no HLB) infestations in 32 Texas counties, which subsequently were quarantined for ACP by the department and the USDA.

In the US and its territories, areas that currently are infested with ACP but that are not believed to have HLB include the states of Alabama, California, Georgia, and Hawaii, as well as Guam and Puerto Rico. Surveys in July 2008 identified ACP infestations (but no HLB) in various counties in Alabama, Georgia, and South Carolina. On September 2, 2008, ACP (but no HLB) was detected in San Diego County, California, as a result of cooperative surveys conducted by USDA-APHIS and the California Department of Food and Agriculture (CDFA).

On November 2, 2007, the Animal and Plant Health Inspection Service (APHIS) issued a Federal Domestic Quarantine Order that quarantined 32 Texas counties for the Asian citrus psyllid. APHIS required that Texas establish a parallel quarantine by December 1, 2007 or they would quarantine the entire state of Texas. Consequently, the department filed an Asian citrus psyllid emergency quarantine, which was followed by adoption of a permanent quarantine. The department's quarantine combats the artificial spread of ACP into non-infested counties of Texas and into those states that the Federal Order allows psyllid host material to enter. Prevention of the artificial spread of ACP into non-infested counties of Texas will deter any spread of citrus greening when and if the disease is found in Texas. Emergency revision of §19.411 and §19.413 is justified by the immediate proximity of a new potential source of HLB and by the urgency of avoiding the entry and spread of HLB in Texas.

An emergency rule adopted under Texas Government Code, §2001.034, may be effective for no longer than 120 days and may be renewed for no longer than 60 days. Nevertheless, the department intends to propose adoption of these emergency rules on a permanent basis in a separate submission.

The emergency amendments to §19.411 and §19.413 are adopted in accordance with the Texas Agriculture Code (the Code), §71.001 which authorizes the department to establish a quarantine for an infested area against an in-state pest if it determines that the pest is dangerous and is not widely distributed in this state; §71.007, which authorizes the department to adopt rules as necessary to protect agricultural and horticultural interests, including rules to prevent the selling, moving, or transporting of any plant, plant product, or substance that is found to be infested or found to be from a quarantined area; or provide for specific treatment of a grove or orchard or of infested or infected plants, plant products, or substances; and, Texas Government Code, §2001.034, which provides for the adoption of administrative rules on an emergency basis, without notice and comment.

§19.411.Quarantined Areas.

The quarantined areas are:

(1) Alabama--Baldwin County;

(2) Florida--Entire State of Florida;

(3) Georgia--Entire State of Georgia;

(4) Guam--All islands of the Territory of Guam;

(5) Hawaii--All islands of the State of Hawaii;

(6) Louisiana--Jefferson, Lafourche, Orleans, Plaquemines, St. Charles, St. James, St. Tammany, and Terrebonne parishes;

(7) Mississippi--Hancock County;

(8) Puerto Rico--Entire Commonwealth of Puerto Rico;

(9) South Carolina--Beaufort, Charleston, and Colleton counties;

~~[(1) the states of Florida and Hawaii, the entire territory of Guam and the Commonwealth of Puerto Rico;]~~

(10) [~~(2)~~] Texas-- [ ~~the Texas counties of~~] Aransas, Atascosa, Austin, Bee, Bexar, Blanco, Brazoria, Brazos, Brooks, Caldwell, Cameron, Colorado, DeWitt, Dimmit, Duval, Fort Bend, Frio, Galveston, Goliad, Gonzales, Grimes, Harris, Hays, Hidalgo, Jackson, Jefferson, Jim Hogg, Jim Wells, Karnes, Kendall, Kenedy, Kinney, Kleberg, La Salle, Live Oak, Matagorda, Maverick, McMullen, Medina, Montgomery, Nueces, Presidio, Refugio, San Patricio, Starr, Uvalde, Wharton, Wilson, Val Verde, Victoria, Waller, Washington, Webb, Willacy, [~~and~~] Zapata, and Zavala counties; and

(11) [~~(3)~~] any other area infested with the Asian citrus psyllid.

§19.413.Restrictions.

(a) (No change.)

(b) Exceptions. To be eligible to move from quarantined areas, quarantined articles must meet the following requirements.

(1) Requirements to move from quarantined areas of Texas to free areas of Texas.

(A) - (B) (No change.)

(C) In the case of quarantined articles that are intended for consumption (e.g., fresh leaves of curry [~~leaf~~] (Bergera (=Murraya) koenigii) or Kaffir lime (Citrus hystrix L.) [ ~~leaves intended for consumption~~], instead of the treatments specified in subparagraph (B) of this paragraph, the leaves must be treated prior to the movement in accordance with the Animal and Plant Health Inspection Service's (APHIS) treatment schedule T101-n-2 (methyl bromide fumigation treatment for external feeding insects on fresh herbs) at the times and rates specified in the treatment manual and safeguarded until export. This information can be found on page 5-2-28 of the treatment manual, located on-line at: http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment_pdf/05_02_t100schedules.pdf [~~http://www.aphis.usda.gov/import_export/plants/manuals/ports/down loads/treatment_pdf/05_02_t100schedules.pdf~~]; and

(D) (No change.)

(2) (No change.)