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(Editor's note: The text of the following sections proposed for repeal will not be published.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) proposes to repeal §§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 psyllid to other states. To avoid APHIS' statewide quarantine, the department quarantined 32 counties on an emergency basis on December 14, 2007, as published in the Texas Register (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, effective on 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). 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). 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. Consequently, the department repealed §§19.410 - 19.413 on January 30, 2009, by filing an emergency rule, which was published in the Texas Register on February 13, 2009 (34 TexReg 911) and is now in effect.
The department believes that it is necessary to repeal §§19.410 - 19.413 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. If the corrective action were not taken, 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 regimen 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.
Dr. Shashank Nilakhe, State Entomologist, has determined that for the first five-year period the repeal is in effect, there will be no fiscal implication for the state or local government for enforcing or administering the appeal.
Dr. Nilakhe also has determined that for each year of the first five-year period the repeal is in effect, the public benefit anticipated will be the saving of $40,320 in treatment cost for commercial citrus nursery growers located in the quarantined area to ship the psyllid host plants to the non-quarantined area of Texas. Repealing the quarantine will have no adverse economic impact on the nurseries, including those classified as small businesses or micro-businesses, or individuals required to comply with the repeal. Because there is no fiscal impact on small or micro-businesses, no regulatory flexibility analysis is required.
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 repeal of §§19.410 - 19.413 is proposed under 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; and, §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.
The code affected by the proposal is the Texas Agriculture Code, Chapter 71.
§19.410.Quarantined Pests.
§19.411.Quarantined Areas.
§19.412.Quarantined Articles.
§19.413.Restrictions.
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 April 24, 2009.
TRD-200901559
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 463-4075