Proposed Rules Title 4

TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 4. PRESCRIBED BURNING BOARD ENFORCEMENT PROGRAM

SUBCHAPTER A. ENFORCEMENT, INVESTIGATION, PENALTIES AND PROCEDURES

The Texas Department of Agriculture (Department) proposes the repeal of Texas Administrative Code, Title 4, Part 1, Chapter 4, §§4.1 - 4.7.

The Department identified the need for the repeal of Chapter 4 during its rule review conducted pursuant to Texas Government Code, §2001.039, the adoption of which can be found in the Review of Agency Rules section of this issue.

The repeal of §4.1, concerning Definitions, is proposed because the repeal of the other rules within Chapter 4 make definitions unnecessary.

The repeal of §4.2 is proposed because Section 41 of Senate Bill 703 (SB 703), 87th Legislature, Regular Session (2021) amended §153.102(b), Texas Natural Resources Code to transfer mandatory rulemaking authority requiring a schedule of disciplinary sanctions from the Department to the Prescribed Burning Board.

The repeal of §4.3 is proposed because this rule restates the statutory requirements of Texas Natural Resources Code, §153.101 concerning how the Department receives and processes complaints concerning certified and insured prescribed burn managers.

The repeal of §4.4 is proposed due to a lack of business necessity as Texas Natural Resources Code, Chapter 153, Subchapter D governs the Department's duties and authority concerning complaints, enforcement, and penalties.

The repeal of §4.5 and §4.6 is proposed because the sections duplicate statutory provisions and provide unnecessary cross references to other rules.

The repeal of §4.7 is proposed due to a lack of business necessity because its provisions are redundant and restate Department policy.

LOCAL EMPLOYMENT IMPACT STATEMENT: The Department has determined that the proposed repeal of Chapter 4 will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Texas Government Code, §2001.022.

GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Texas Government Code, §2001.0221, Patrick Dudley, Program Director for Agriculture Commodity Boards and Producer Relations provides the following Texas Government Growth Impact Statement for the proposed repeals. For each year of the first five years the proposed repeal of Chapter 4 will be in effect, the Department has determined the following:

1. the proposed repeal does not create or eliminate a government program;

2. implementation of the proposed repeal does not require the creation or elimination of employee positions;

3. implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the Department;

4. the proposed repeal does not require an increase or decrease in fees paid to the Department;

5. the proposed repeal does not create a new regulation;

6. the proposed repeal will repeal existing regulations;

7. the proposed repeal does not increase or decrease the number of individuals subject to the rule's applicability; and

8. the proposed repeal does not positively or adversely affect this state's economy.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Mr. Dudley has determined that for each year of the first five years the proposed repeal of Chapter 4 is in effect, enforcing or administering the proposed repeal does not have foreseeable implications relating to costs or revenues of the state or local governments.

PUBLIC BENEFITS: Mr. Dudley has also determined that for each year of the first five-year period the proposed repeal is in effect, the public benefit will be the elimination of rules that have been determined as redundant or are no longer supported by the legal authority required to promulgate rules.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL: Mr. Dudley has further determined that for each year of the first five-year period the proposed repeal is in effect, there will be no costs to persons as the rules in Chapter 4 will no longer exist as a result of the proposed repeal.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal; therefore, preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002, is not required.

Comments on the proposed repeal of Chapter 4 may be submitted to Patrick Dudley, Program Director for Agriculture Commodity Boards and Producer Relations, P.O. Box 12847, Austin, Texas 78711, or by email to Patrick.Dudley@TexasAgriculture.gov. The deadline for public comment is 30 days after publication of the proposed repeal in the Texas Register.

The repeal is proposed under Section 12.016 of the Texas Agriculture Code (Code), which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Code.

Texas Agriculture Code, Chapter 12 and Texas Natural Resources Code, Chapter 153 are affected by the proposed repeals.

§4.1.Definitions.

§4.2.Schedule of Disciplinary Sanctions.

§4.3.Complaints and Investigation.

§4.4.Enforcement.

§4.5.Penalties.

§4.6.Contested Case.

§4.7.Settlement of a Contested Case.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2023.

TRD-202302381

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 13, 2023

For further information, please call: (512) 936-9360

PART 13. PRESCRIBED BURNING BOARD

CHAPTER 231. SCHEDULE OF DISCIPLINARY SANCTIONS

4 TAC §231.1

(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 4 TAC §231.1 is not included in the print version of the Texas Register. The figure is available in the on-line version of the July 14, 2023, issue of the Texas Register.)

The Texas Prescribed Burning Board (Board), a semi-independent board administratively attached to the Texas Department of Agriculture (Department), proposes new Texas Administrative Code, Title 4, Part 13, Chapter 231, §231.1, concerning Schedule of Disciplinary Sanctions.

The new rule is proposed because Section 41 of Senate Bill 703, 87th Legislature, Regular Session (2021) amended §153.102(b), Texas Natural Resources Code to transfer mandatory rulemaking authority requiring a schedule of disciplinary sanctions from the Department to the Board. The proposed schedule of disciplinary sanctions is substantively the same as the one adopted by the Department, currently found at 4 Texas Administrative Code §4.2.

LOCAL EMPLOYMENT IMPACT STATEMENT: The Department and Board have determined that the proposed rule will not affect a local economy, so the Department and Board are not required to prepare a local employment impact statement under Texas Government Code, §2001.022.

GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Texas Government Code, §2001.0221, on behalf of the Board and Department, Patrick Dudley, Coordinator for Agriculture Commodity Boards and Producer Relations provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the Department and Board have determined the following:

1. the proposed rule does not create or eliminate a government program;

2. implementation of the proposed rule does not require the creation or elimination of employee positions;

3. implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Department or Board;

4. the proposed rule does not require an increase or decrease in fees paid to the Department or Board;

5. the proposed rule creates a new regulation;

6. the proposed rule will not expand, limit, or repeal an existing regulation;

7. the proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and

8. the proposed rule does not positively or adversely affect this state's economy.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: On behalf of the Board and Department, Mr. Dudley has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of state or local governments.

PUBLIC BENEFITS AND PROBABLE ECONOMIC COST: Mr. Dudley has further determined, on behalf of the Board and Department, that for each year of the first five-year period the proposed rule is in effect, the public benefit will be to promote public safety by having an enforceable schedule of disciplinary sanctions for certified and insured prescribed burn managers. Mr. Dudley has also determined that for each year of the first five-year period the proposed rule is in effect, there will be no cost to persons who are required to comply with the proposed rule.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department and Board have determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002, are not required.

Comments on the proposed rule may be submitted to Patrick Dudley, Program Director for Agriculture Commodity Boards and Producer Relations, P.O. Box 12847, Austin, Texas 78711, or by email to Patrick.Dudley@TexasAgriculture.gov. The deadline for comments is 30 days after publication of the proposed new rule in the Texas Register.

The rule is proposed under Texas Natural Resources Code, §153.102, which provides the Board, by rule, shall adopt a schedule of the disciplinary sanctions that the Department shall impose under Texas Natural Resources Code, Chapter 153.

Texas Natural Resources Code, Chapter 153, is affected by the proposal.

§231.1.Schedule of Disciplinary Sanctions.

Pursuant to §153.102(b) of the Texas Natural Resources Code, the Board has established the following schedule of disciplinary sanctions for violations of Chapter 153, Texas Natural Resources Code, and the rules adopted thereunder:

Figure: 4 TAC §231.1 (.pdf)