PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS
SUBCHAPTER V. MEXICAN FRUIT FLY QUARANTINE
The Texas Department of Agriculture (the department) adopts on an emergency basis new §§19.500 - 19.508, concerning a quarantine for the Mexican fruit fly, Anastrepha ludens (Loew). The new sections are adopted on an emergency basis to prevent the spread of Mexican fruit fly and to facilitate its eradication. The new sections require application of treatments to achieve eradication and prescribe specific restrictions on the handling and movement of quarantined articles. On April 27, 2009, a mated female of a fruit fly was detected in a McPhail trap established on a grapefruit tree in a dooryard located two miles from Encino, Brooks County, and on April 29, 2009, the fly was confirmed to be the Mexican fruit fly. The McPhail traps have been used in Cameron, Hidalgo and Willacy counties, where the state's commercial citrus crops are produced, for more than 20 years to survey for infestations of the Mexican fruit fly and certain other fruit fly species. Host plants of the Mexican fruit fly, including citrus, are not grown commercially in Brooks County; however, a few McPhail traps were deployed in 2008-2009 to find out if a residual population of the Mexican fruit flies occurs in that county. Furthermore, the occurrence of Mexican fruit fly in Brooks County poses a risk to the management and eradication effort of the fruit fly in Hidalgo County, which borders Brooks County.
The department believes that it is necessary to take this immediate action to prevent the spread of the Mexican fruit fly into commercial citrus growing areas of Texas and other states, and adoption of this quarantine on an emergency basis is both necessary and appropriate. The citrus industry in particular is in peril because without this emergency quarantine and treatment of the infestation, USDA would quarantine the entire state of Texas and as a result, Texas could lose important export markets and would require regulatory treatments such as fumigation of all exported fruit. The emergency quarantine takes necessary steps to prevent the artificial spread of the quarantined pest and provides for its elimination, thus protecting the state's citrus crops, an agricultural industry important to the state of Texas. Cameron and Hidalgo counties are currently quarantined for the Mexican fruit fly whereas the quarantine for the Willacy County was rescinded after the Mexican fruit fly was declared eradicated from that county.
New §19.500 states the basis for the quarantine and defines the quarantined pest. New §19.501 establishes the duration of the quarantine. New §19.502 designates the infested areas subject to quarantine. New §19.503 lists the articles subject to the quarantine. New §19.504 provides restrictions on the movement of articles subject to the quarantine. New §19.505 provides requirements for monitoring and handling and treatment of regulated articles located within the quarantined area. New §19.506 provides consequences for failure to comply with quarantine restrictions. New §19.507 provides for the appeal of action taken for failure to comply with the quarantine restrictions or requirements. New §19.508 provides procedures for handling of discrepancies or other inconsistencies in textual descriptions in this subchapter with graphic representations. The department may propose adoption of this rule on a permanent basis in a separate submission.
The new sections are adopted on an emergency basis under the Texas Agriculture Code, §71.004, which authorizes the department 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; §12.020 which authorizes the department to assess administrative penalties for violations of Chapter 71; and the Texas Government Code, §2001.034, which provides for the adoption of administrative rules on an emergency basis, without notice and comment.
§19.500.Basis for Quarantine--Dangerous Insect Pest or Plant Disease (Proscribed Biological Entity).
(a) The department finds that Anastrepha ludens (Loew), also known as the Mexican fruit fly, is at any stage of development a dangerous insect pest or plant disease that is not widely distributed in this state.
(b) Description of dangerous insect pest or plant disease. The Mexican fruit fly, scientific name Anastrepha ludens (Loew), is a dangerous pest of the numerous host plants listed in §19.503 of this title (relating to Articles Subject to the Quarantine). The fly ovipos sits in the fruit where the larvae subsequently hatch and begin feeding. The larvae, feeding inside the fruit, cause damage to the flesh of the fruit, making it unmarketable. The United States Department of Agriculture (USDA), as well as many states, consider the Mexican fruit fly to be a serious plant pest whose control and eventual eradication from quarantined areas is imperative.
(c) Unless otherwise expressly stated, the term "Mexican fruit fly" when used in this subchapter refers to any or all developmental stages of the dangerous insect pest or a plant disease described in this section.
(d) The department is authorized by the Texas Agriculture Code, §71.002, to establish a quarantine against the dangerous insect pest or plant disease identified in this section.
§19.501.Duration of the Quarantine.
The quarantine established by this subchapter shall remain in effect until the dangerous insect pest or plant disease described in §19.500 of this title (relating to Basis for Quarantine--Dangerous Insect Pest or Plant Disease (Proscribed Biological Entity)) is eradicated. The Mexican fruit fly shall be considered eradicated from the quarantined area when no additional Mexican fruit flies are detected for a time period equal to three consecutive generations after the most recent detection. For the Mexican fruit fly, the number of days required to complete a reproductive cycle, one generation, is dependent upon temperature. Therefore, a day-degree model will be used to calculate the duration of each consecutive generation.
§19.502.Infested Geographical Areas Subject to the Quarantine.
(a) Quarantined infested areas.
(1) Quarantined infested areas (infested geographical areas subject to the quarantine) are those locations within this state in which the dangerous insect pest or plant disease is currently found, from which dissemination of the pest or disease is to be prevented, and in which the pest or disease is to be eradicated.
(2) The following areas are declared to be quarantined infested areas: The 4.5-mile radius area surrounding the Mexican fruit fly detection at latitude 26.33394 and longitude -98.15094 in Brooks County. Further, this area is described as beginning from a point at longitude -98.22450 N and latitude 26.86804 W, then easterly along the line of latitude 26.86804 N to the line of longitude 98.07762 W, then northerly along the line of longitude -98.07762 N to the line of latitude 26.99984 W, then westerly along the line of latitude 26.99984 W to the line of longitude -98.22450 N, then southerly along the line of -98.22450 N to the point of beginning and covers approximately 81 square miles.
(3) A map of the quarantined area may be obtained by contacting USDA, 903 San Jacinto, Suite 270, Austin, Texas 78701, (512) 916-5241 or the department's Valley Regional Office, 900-B East Expressway 82, San Juan, Texas 78598, (956) 787-8866.
(b) Creating, modifying, or extending quarantined infested areas. When five or more males or unmated females of the Mexican fruit flies are trapped or otherwise discovered within a time period equal to one fly generation and within 3 miles of each other or a mated female or one larva or pupa is trapped or otherwise discovered, a quarantine area shall be established around the site where the fly was trapped or otherwise discovered. The area quarantined shall consist of an area of approximately 4.5-mile radius with the detection site at the center (roughly 81 square miles).
(c) Core areas. In addition to the quarantined area, one or more core areas may be established within each quarantined area around a detection site. Each core area shall consist of an approximately 1.0 square mile area with a detection site at or near the center. Each approximately square-shaped core area is defined by four GPS readings for each corner of the core area. Core areas are subject to more extensive monitoring and handling requirements. One core area is currently in place for the Mexican fruit fly quarantine. A treatment area will comprise of an area up to 500 meters surrounding the detection.
(d) Core areas are as described in subsection (a) of this section. Additional core areas, if any, shall be published by the department in the In Addition section of the Texas Register as they are established.
§19.503.Articles Subject to the Quarantine.
An article subject to the quarantine, or regulated article, is an item the handling of which is controlled, regulated, or restricted by Chapter 71 of the Texas Agriculture Code, this subchapter, and any department orders issued pursuant to these rules and Chapter 71, in order to prevent dissemination of the dangerous insect pest or plant disease to areas located outside a quarantined infested area or into a quarantined non-infested area. The following articles are subject to the quarantine.
(1) The Mexican fruit fly;
(2) the fruit, at any stage of development, of all of the following plants, listed by common name with genus and species in parentheses, when grown, harvested, processed, or otherwise handled within or transported through the quarantined area:
(A) Apple (Malus domestica);
(B) Apricot (Prunus armeniaca);
(C) Avocado (Persea americana);
(D) Calamondin orange (X citrofortunella mitis);
(E) Cherimoya (Annona cherimola);
(F) Citrus citron (Citrus medica);
(G) Custard apple (Annona reticulate);
(H) Grapefruit (Citrus paradise);
(I) Guava (Pisidium guajava);
(J) Japanese plum (Prunus salicina);
(K) Lemon (Citrus limon) except Eureka, Lisbon, and Vila Franca cultivars (smooth skinned sour lemon);
(L) Lime (Citrus aurantifolia);
(M) Mammy-Apple (Mammea americana);
(N) Mandarin orange (tangerine) (Citrus reticulate);
(O) Mango (Mangifera indica);
(P) Nectarine (Prunus persica);
(Q) Peach (Prunus persica);
(R) Pear (Pyrus communis);
(S) Plum (Prunus americana);
(T) Pomegranate (Punica granatum);
(U) Prune, Plum (Prunus domestica);
(V) Pummelo (shaddock) (Citrus maxima);
(W) Quince (Cydonia oblonga);
(X) Rose apple (Syzyglum jambos) (Eugenia jambos);
(Y) Sour orange (Citrus aurantium);
(Z) Sapote (Casimiroa spp.);
(AA) Sapota, Sapodilla (Sapotaceae);
(BB) Sargentia, yellow chapote (Sargentia greggi);
(CC) Spanish Plum, purple mombin or Ciruela (Spondias spp.);
(DD) Sweet orange (Citrus sinensis);
(3) any other fruit capable of hosting, harboring, propagating, or disseminating the Mexican fruit fly;
(4) the producing plant if it has one or more fruits listed in paragraph (2) of this section attached to or growing from it; and
(5) any article, item, conveyance, or thing on or in which the Mexican fruit fly is actually found.
§19.504.Restrictions on Movement of Articles Subject to the Quarantine.
(a) In General.
(1) A regulated article originating within a quarantined infested area may not be moved outside the infested area except as otherwise provided by these rules.
(2) In order to prevent the movement of regulated articles, including the dangerous insect pest or plant disease, from a quarantined area into a non-quarantined area, as required by the Texas Agriculture Code, §71.005(a), a person that transports a regulated article through or within an infested area using a motor vehicle, railcar, or other conveyance capable of transporting the regulated article outside the infested area, is subject to the requirements of subsection (c) of this section.
(b) Conditions Under Which Regulated Articles May Be Moved Out of an Infested Area. Plants that are regulated articles shall not be moved outside the quarantined infested area with fruit attached. Detached fruit originating within a quarantined infested area may be moved outside the infested area if:
(1) the fruit is covered by a tarpaulin or other approved covering and taken directly to and segregated in an approved packing house or other approved treatment facility and fumigated as prescribed in the Texas Rio Grande Valley Mexican Fruit Fly Protocol 2008-2009, a copy of which may be obtained at the department's Valley Regional Office, 900-B East Expressway 82, San Juan, Texas 78598, (956) 787-8866, and the fruit is accompanied by a copy of all documentation of origin or treatment required by this subchapter or a compliance agreement with the department or USDA;
(2) the grower has entered into a compliance agreement with the department or the USDA, the fruit has been treated and is being handled in accordance with the requirements set forth in the compliance agreement (at the time these rules are published, a compliance agreement requires use of approved bait sprays at 10 to 12 day intervals, or a shorter or longer period upon receipt of written notice from the department or the USDA of the modified treatment interval, starting at least 30 days before harvest and continued through the harvest period), and the fruit is accompanied by all documentation of origin or treatment required by this subchapter or a compliance agreement with the department or USDA; or
(3) the fruit is to be moved outside the quarantined area for juicing and the fruit is covered by a tarpaulin or other approved covering and accompanied by all documentation of origin or treatment required by this subchapter or a compliance agreement with the department or USDA.
(c) Requirements for Transporters of Regulated Articles Within or Through an Infested Area.
(1) A person who transports a regulated article within or through an infested area using a motor vehicle, railcar, other conveyance, or equipment capable of transporting the regulated article outside the infested area shall take the following precautions to ensure that the dangerous insect pest or plant disease is not disseminated outside the quarantined area and that non-infested regulated articles do not become infested by virtue of transport within or through the infested area: if carried in a part of the conveyance or equipment that is open to the outside environment, detached fruit must be covered by a tarpaulin, plastic sheet, or other covering sufficient to prevent the Mexican fruit fly from contacting the fruit; regulated articles other than detached fruit shall not be moved within or through the quarantined area unless handled in accordance with the provisions of a written notice issued by the department or the USDA or a written compliance agreement between the person and the department or the USDA.
(2) Regulated articles originating outside the quarantined area and transported through the quarantined area in an open part of a conveyance or piece of equipment and without an appropriate covering shall be treated the same under this subchapter as regulated articles originating in the quarantined area and shall be handled according to the procedures described in subsection (b) of this section and elsewhere in this subchapter.
§19.505.Monitoring and Eradication of the Dangerous Pest or Plant Disease.
(a) A regulated article located within a core area shall be monitored, handled, and treated by ground or aerial sprays, as prescribed in a written notice issued by the department or the USDA or as specified in a written compliance agreement between the owner or person in control of the regulated article or the property on which the regulated article is located.
(b) The owner or manager of an orchard, other commercial fruit operation, or nursery subject to quarantine requirements may be required to bear all treatment expenses.
(c) Homeowners located in the core areas who enter into a written compliance agreement with the department or the USDA shall not be required to pay treatment expenses for fruit or fruit trees grown, harvested, or found on their residential property, unless the fruit or fruit tree is transported to the residential property from an orchard, other commercial fruit operation, or nursery owned or operated by the homeowner or at which the homeowner is employed, at a time during which the quarantine is in effect.
(d) Unless otherwise specified in a written notice issued by the department or the USDA or in a written compliance agreement between the person and the department or the USDA, a wholesaler, fruit retailer, street fruit vendor, or flea market stall operator located within the quarantined area shall cover or enclose detached fruit with air curtains, screens of appropriate mesh, plastic sheets, boxes without holes or other openings, or tarpaulins.
(e) A person who within the quarantined area is holding or displaying for sale or distribution a plant that is a regulated article shall ensure that each such plant is free from fruit at all times prior to sale or distribution.
§19.506.Consequences for Failure to Comply with Quarantine Restrictions.
A person who fails to comply with quarantine restrictions or requirements or a department order relating to the quarantine may be subject to administrative penalties not to exceed $5000 per occurrence, civil penalties not to exceed $10,000 per occurrence, or criminal prosecution. Each day a violation occurs or continues may be considered a separate occurrence. Additionally, the department is authorized to seize and treat or destroy, or order to be treated or destroyed, any quarantined article that is found to be infested with the quarantined pest or, regardless whether infested or not, transported out of or through the quarantined area in violation of these rules. Treatment, destruction, storage, or other charges, including those incurred by the department, are chargeable to the owner of the quarantined article to be treated or destroyed.
§19.507.Appeal of Department Action Taken for Failure to Comply with Quarantine Restrictions.
An order under the quarantine may be appealed according to procedures set forth in the Texas Agriculture Code, §71.010.
§19.508.Conflicts Between Graphical Representations and Textual Descriptions; Other Inconsistencies.
(a) In the event that discrepancies exist between graphical representations and textual descriptions in this subchapter, the representation or description creating the larger geographical area or more stringent requirements regarding the handling or movement of quarantined articles shall control.
(b) The textual description of the insect pest or plant disease shall control over any graphical representation of the same.
(c) Where otherwise clear as to intent, the mistyping of a scientific or common name in this subchapter shall not be grounds for avoiding the requirements of this subchapter.
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 May 1, 2009.
TRD-200901643
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective Date: May 1, 2009
Expiration Date: August 28, 2009
For further information, please call: (512) 463-4075