PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS
SUBCHAPTER J. RED IMPORTED FIRE ANT QUARANTINE
The Texas Department of Agriculture (the department) proposes an amendment to §19.101, concerning the department's Red Imported Fire Ant Quarantine, 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, Martin, Mitchell, Nolan, Reagan, Runnels, Schleicher, Scurry, Shackelford, Starr, Terrell, Upton Throckmorton, Ward, Wilbarger and Winkler counties have a widespread fire ant infestation. In Lubbock County the infestation is limited to the central portion of the City of Lubbock but the rest of the county is free of red imported fire ant infestation. The proposed amendment 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 application of U.S. Department of Agriculture-approved quarantine treatment to control fire ant infestation. Hay may only be shipped to fire ant free areas if it is stored in a manner that prohibits direct contact with the soil.
The proposed amendment adds Archer, Baylor, Callahan, Clay, Coke, Coleman, Concho, Crane, Crockett, Fisher, Haskell, Howard, Irion, Martin, Mitchell, Nolan, Reagan, Runnels, Schleicher, Scurry, Shackelford, Starr, Terrell, Throckmorton, Ward, Wilbarger, Winkler and Upton 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 City of Lubbock, Texas AgriLife Research and Extension Center and the county commissioners have been proactive in containing and controlling the limited fire ant infestation at the central portion of the City of Lubbock through pesticide treatment of and community outreach efforts.
The department believes that it is necessary to take the quarantine action to prevent the artificial spread of the red imported fire ant into non-infested areas of Texas and other states. The nursery industry as well as the hay producers in the non-infested counties is in peril because without this 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. Further, if a state declines to quarantine the fire ant-infested counties, the USDA could quarantine the entire state.
The proposed amendment to §19.101 expands the quarantined area in correspondence with the detection of the red imported fire ant outside the current quarantined area.
The department adopted an amendment to §19.101 on an emergency basis on November 5, 2008 (33 TexReg 9355), which expired on March 4, 2009. The department filed a revised emergency quarantine on March 6, 2009, now in effect, which is the same as the November 5 submission, except that only the fire ant-infested portion of the City of Lubbock is quarantined instead of all of Lubbock County. The proposed rule is identical to the March 6, 2009, emergency submission.
Dr. Awinash Bhatkar, Coordinator for Plant Quality Programs, has determined that for the first five-year period the amended section is in effect, there will be no fiscal implication for the state or local government as a result of enforcing or administering the amended section.
Dr. Bhatkar also has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing the amended section will be to prevent introduction of the imported fire ant into the fire ant free areas of Texas and other states. There are about 156 registered nursery-floral operations in the counties proposed for quarantine, of which approximately 14 are nursery grower operations with estimated 200 acre growing area. These 14 businesses are considered as micro-businesses and none meet the criterion of a small business. The fire ant treatment would cost approximately $445 per acre. Thus, to treat 200 acres, the cost will be approximately $89,000. A treatment is not required to ship the quarantined articles within the quarantined area. Furthermore, a majority of the quarantined articles from the proposed quarantined counties is shipped to the counties currently under the quarantine. Consequently, the actual treatment cost is expected to be much lower than $89,000. There would be some economic hardship to the hay producers since hay destined for shipment outside the quarantined area would need to be stored in a manner to prevent direct contact with the soil; however, such cost cannot be estimated. The shipments of quarantined articles can be made by issuing phytosanitary certificates at $30 per inspection. Multiple certificates can be issued based on one inspection. A business may consider this cost as an overhead, or may recuperate it by adding to the relevant shipment, by distributing over all the shipments, or by some other means. However, it is not possible to quantify cost because of different volume of shipments. The grower nurseries can enter into a compliance agreement with the department provided they follow the USDA-approved quarantine treatments for shipping the nursery-floral commodities to fire ant-free areas. These nurseries are issued USDA compliance stamps and are not charged for export certification. Because the proposed quarantine requirements and method of treatment is dictated by the USDA, the department is not able to provide a viable alternative to minimize the costs to affected micro-businesses.
Comments on the proposal may be submitted to Dr. Awinash Bhatkar, Coordinator for Plant Quality 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 publication of the proposal in the Texas Register.
The amendment is 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.
§19.101.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, 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 , and the area of the City of Lubbock located within Highway 27 to the East, Highway 289 to the North, Milwaukee Street to the West and 98 Street to the South are quarantined.
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 9, 2009.
TRD-200900990
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 19, 2009
For further information, please call: (512) 463-4075