TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 19. QUARANTINES AND NOXIOUS AND INVASIVE PLANTS

SUBCHAPTER K. EUROPEAN CORN BORER QUARANTINE

4 TAC §§19.110 - 19.113

The Texas Department of Agriculture (the Department) adopts amendments to the Texas Administrative Code, Title 4, Part 1, Chapter 19, Subchapter K, European Corn Borer Quarantine, §§19.110 - 19.112, without changes to the text as published in the April 10, 2020, issue of the Texas Register (45 TexReg 2394). These rules will not be republished. Section 19.113 is adopted with changes and will be republished.

The adopted amendment to §19.110 revises the taxonomic name of the Quarantined Pest, European Corn Borer to Ostrinia nubilalis, which is the most widely acceptable taxonomic name. The adopted amendment to §19.111 modifies the European Corn Borer Quarantined Areas to include counties in Florida known to be infested with European Corn Borer. The adopted amendment to §19.112 adds Cannabis spp. to the list of Quarantined Articles in the European Corn Borer Quarantine. The adopted amendments to §19.113 clarify the restrictions on the movement of European Corn Borer Quarantined Articles from European Corn Borer Quarantined Areas.

The Department received one comment on the proposal from Mr. Steven Long, Assistant Director of Regulatory and Public Service Programs in the Department of Plant Industry at Clemson University, State Plant Regulatory Official, and National Plant Board Vice President. Mr. Long expressed concern about the compliance agreement requirement for hemp plants for planting, as most would be shipped in life-stages not conducive for European corn borer infestation. Amendments were modified to allow shipments of hemp plants for planting, as well as ornamental plants, cut flowers and vegetables if each lot or shipment is inspected and accompanied by a certificate evidencing that no European Corn Borer were found.

The amendments are adopted under §71.001 of the Texas Agriculture Code, which provides the Department with the authority to quarantine an area if it determines that a dangerous insect pest or plant disease new to and not widely distributed in this state exists in any area outside the state; §71.005 of the Texas Agriculture Code, which provides that the Department shall prevent the movement, from a quarantined area into an unquarantined area or pest-free area, of any plant, plant product, or substance capable of disseminating the pest or disease that is the basis for the quarantine; and §71.007 of the Texas Agriculture Code, which provides the Department with the authority to adopt rules as necessary for the protection of agricultural and horticultural interests.

Chapter 71 of the Texas Agriculture Code is affected by the adoption.

§19.113.Restrictions.

(a) General. Quarantined articles originating from quarantined areas are prohibited entry into or through the free areas of Texas, except as provided in subsections (b) and (c) of this section.

(b) Exemptions. The following quarantined articles are exempt from the restrictions of this subchapter:

(1) individual shipments of lots of shelled grain or seed of 100 pounds or less;

(2) grain comprised of packages less than 10 pounds and free from portion of plants or fragments capable of harboring the European Corn Borer;

(3) shelled popcorn, seed for planting, or clean, sacked grain for human consumption;

(4)dahlia tubers without stems;

(5) gladiolus corms without stems;

(6) pungent types of pepper fruits;

(7) dried flowers and leaves, seeds for planting and human consumption, extracted fiber, and extracted oil of Cannabis spp.;

(8) divisions without stems of the previous year's growth, seedling plants, rooted cuttings, and cut flowers of ornamental plants listed in §19.112(b)(3) of this subchapter (relating to Quarantined Articles) if shipped during the period between November 30th to May 1st; and

(9) quarantined articles destined to a processing facility may be granted an exemption upon departmental review.

(c) Exceptions.

(1) A quarantined article may be shipped into a free area in Texas if it is accompanied by a certificate issued by an authorized representative of the origin state's department of agriculture certifying that the article has met one of the following conditions:

(A) the quarantined article was a product of a state not listed as quarantined in this subchapter, and the quarantined article has been maintained to assure no blending or mixing with other quarantined articles produced in or shipped from quarantined areas described in this subchapter; or

(B) grain has been screened through a 1/2 inch or smaller mesh screen, or otherwise processed prior to loading and is free from stalks, cobs, stems or such portions of plants or fragments; or

(C) the quarantined article has been fumigated in a manner prescribed by the department; or

(D) the quarantined article originated from an approved establishment:

(i) in Texas, which has a current compliance agreement with the department; or

(ii) which has a current compliance agreement with the originating state department of agriculture; or

(E) divisions without stems of the previous year's growth, seedling plants, rooted cuttings, and cut flowers of ornamental plants listed in §19.112 (b)(3) of this subchapter (relating to Quarantined Articles), seedling plants and cuttings of Cannabis spp., and articles listed in §19.112(b)(2) of this subchapter (relating to Quarantined Articles), if each lot or shipment is inspected by an authorized representative of the origin state's department of agriculture and no European Corn Borer is found; or

(F) the greenhouse or the growing area where ornamentals with divisions without stems of the previous year's growth, rooted cuttings, seedling plants or cut flowers were produced, were inspected and no European Corn Borer was found; or

(G) parts of Cannabis spp. plants have been screened through a 1/2 inch or smaller mesh screen, or otherwise processed prior to loading and are free from stalks, stems or such portions of plants or fragments capable of harboring larvae of European Corn Borer.

(2) Unfumigated and unscreened grain may be shipped through the free area of Texas if it is destined to a foreign port through a port elevator operating under the authority of the Federal Grain Inspection Service (FGIS), provided a certificate from the state of origin accompanies each shipment stating:

(A) grain is for export only; and

(B) shipment shall not be diverted to any other Texas point; and

(C) a change in destination to other Texas points is not authorized.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 10, 2020.

TRD-202003235

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Effective date: August 30, 2020

Proposal publication date: April 10, 2020

For further information, please call: (512) 936-9630