PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS
SUBCHAPTER U. ASIAN CITRUS PSYLLID QUARANTINE
(Editor's note: The text of the following sections adopted for repeal on an emergency basis will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Agriculture (the department) repeals on an emergency basis §§19.410 - 19.413, concerning a quarantine for the Asian Citrus Psyllid, Diaphorina citri Kuwayama. The Animal and Plant Health Inspection Service (APHIS) agency of the United States Department of Agriculture (USDA) issued a Federal Order on November 2, 2007, titled, "Expansion of the quarantines for citrus greening and Asian citrus psyllids," which quarantined 32 Texas counties for this psyllid insect pest. The Federal Order required the department to establish a parallel quarantine by December 1, 2007; otherwise APHIS cautioned it would quarantine the entire state of Texas to prevent the spread of the psylllid to other states. To avoid APHIS' statewide quarantine, the department quarantined 32 counties on an emergency basis on December 14, 2007 (32 TexReg 9185). Later, the department published a proposed rule to quarantine these 32 counties in the February 22, 2008, issue of the Texas Register (33 TexReg 1475) and adopted the proposal on April 4, 2008 to be effective April 24, 2008 as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3260).
As the psyllid survey continued, the insects were found in four additional counties, which were added to §19.411 and §19.413 of the quarantine on an emergency basis on August 27, 2008, as published in the September 12, 2008, issue of the Texas Register (33 TexReg 7653). However, the department withdrew this emergency amendment to §19.411 and §19.413 on November 5, 2008, as published in the November 21, 2008, issue of the Texas Register (33 TexReg 9449). Section 19.413 allows for movement of quarantined articles, which are hosts of the psyllid, from the quarantined counties of the state to free counties of the state provided a prescribed treatment regiment was followed. However, APHIS issued a federal order on January 28, 2009, which quarantined the entire state of Texas for the psyllid, and consequently rendered the department's Asian Citrus Psyllid quarantine obsolete.
The department believes that it is necessary to repeal §§19.410 - 19.413 on an emergency basis because the January 28, 2009, federal order quarantines the entire state of Texas for the psyllid. The only recourse available to the department to align with the federal quarantine is to repeal the state quarantine on an emergency basis. If the corrective action were not taken on an emergency basis, it would create confusion among the traders, primarily of the citrus plants, about the intrastate and interstate shipping requirements.
In Texas, about 90 percent of the quarantined articles, primarily citrus nursery plants, are produced by nurseries located in the 32 quarantined counties and these nurseries also sell about 70 percent of the plants into free counties. Prohibiting movement of these plants to free counties would be a significant economic hardship to these nurseries. Furthermore, APHIS informed the department if the state cannot comply with the federal requirement of prohibiting movement of the quarantined articles from the psyllid-infested counties to psyllid-free counties within a state, then APHIS would quarantine the entire state for the Asian citrus psyllid. The department consulted with representatives of the state's nursery, citrus, and produce associations, and all suggested repealing the state's Asian Citrus Psyllid Quarantine and allowing APHIS to quarantine the entire state, which would mean quarantined articles could be moved within the state without any restrictions and without the treatment. While quarantined articles are seldom moved outside Texas, APHIS would assist such movement by issuing limited permits provided the prescribed treatment regiment is followed. The department will also assist APHIS if needed to expedite issuance of the required certification. In addition, the department will inform nursery managers in the quarantined counties, who have entered into a compliance agreement with the department to treat the quarantined articles for movement to free counties that the department is canceling the agreement and that the quarantined articles are free to move within Texas without any treatment for the psyllids. The department intends to propose adoption of this emergency filing on a permanent basis in a separate submission.
The repeal of §§19.410 - 19.413 is adopted on an emergency basis 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.
§19.410.Quarantined Pests.
§19.411.Quarantined Areas.
§19.412.Quarantined Articles.
§19.413.Restrictions.
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 January 30, 2009.
TRD-200900372
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective Date: January 30, 2009
Expiration Date: May 29, 2009
For further information, please call: (512) 463-4075