PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 3. BOLL WEEVIL ERADICATION PROGRAM
The Texas Department of Agriculture (Department) adopts amendments to Texas Administrative Code (TAC), Title 4, Part 1, Chapter 3, Boll Weevil Eradication Program, Subchapter A (Election Procedures), §§3.1, 3.2, 3.4 - 3.7, 3.10, and 3.11; Subchapter B (Establishment of Rules, Procedures, and Methods of Treatment), §§3.22 - 3.24; Subchapter C (Prohibition of Planting of Cotton), §§3.51 and 3.52; Subchapter D (Requirements for Participation in the Eradication Program and Administrative Penalty Enforcement), §§3.71, 3.72, 3.74 - 3.76, and 3.78; Subchapter E (Creation of Eradication Zones), §§3.100, 3.102, and 3.103; Subchapter F (General Procedures), §§3.201 - 3.203 and 3.205; Subchapter H (Use of Bio-Intensive Controls in Active Boll Weevil Eradication Zones), §§3.400 - 3.403; and Subchapter J (Organic Cotton Rules), §§3.601, 3.602, and 3.604 - 3.609 without changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8818). These rules will not be republished.
The Department adopts amendments to Subchapter A, §3.3; Subchapter C, §3.54; and Subchapter D, §3.73 with changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8818). These rules will be republished. The changes retain existing requirements for notice of eradication zone elections and certain Texas Boll Weevil Eradication Foundation (Foundation) actions to be published in newspapers. The changes to §§3.3, 3.54, and 3.73 are made to comply with the statutory requirements for publication in newspapers found in §§74.106, 74.117, and 74.118 of the Texas Agriculture Code (Code).
The amendments to §3.1 update a reference to the United States Department of Agriculture (USDA) Farm Service Agency (FSA) and add "Texas Boll Weevil Eradication Foundation" to clarify the reference to the Foundation Board of Directors (Board).
The amendments to §3.2 add a subsection allowing an unopposed Board candidate to assume a Board position without holding an election to expedite the election process and increase efficiency.
The amendments to §3.3 add "Texas Boll Weevil Eradication Foundation" to clarify the reference to its Board and update references to Chapter 74 of the Code and Texas A&M's AgriLife Extension Service.
The amendment to §3.4 updates the content requirements of ballots for Board elections to comport with the current Foundation practices.
The amendment to §3.5 clarifies the reference to the geographic area by which tabulation and recording of votes will occur.
The amendments to §3.6 supplement references to "zones" to "eradication zones" for greater clarity and to conform with usage throughout Chapter 74 of the Code and update a reference to the FSA and statutory references to Chapter 74 of the Code.
The amendments to §3.7 clarify references to "zones" to mean "eradication zones" for greater clarity and to conform with usage in Chapter 74 of the Code.
The amendments to §3.10 update references to the FSA and statutory references to Chapter 74 of the Code and revise language to require either the signature of a grower or a person with the authority to sign for a grower on a petition for changing areas in an eradication zone.
The amendments to §3.11 change references to the Department to conform with usage throughout Title 4, Part 1; modify language to require either the signature of a grower or a person with the authority to sign for a grower on a petition for recalling a referendum in an eradication zone; and update a reference to the FSA, as well as statutory references to Chapter 74 of the Code.
The amendments to §3.22 remove unnecessary definitions for terms already defined in TAC, Title 4, Part 1, §1.1, which apply to the entire part; remove definitions no longer used in this chapter; remove a definition for "zone" because it is defined in Section 74.002 of the Code and update the definition for the Foundation.
The amendments to §3.23 remove an outdated reference to the now nonexistent National Boll Weevil Cooperative Control Program, update references to pesticide rules in Chapter 7 of TAC, Title 4, Part 1 and to Texas A&M AgriLife Extension Service county agents.
The amendments to §3.24 update a reference to the Texas Natural Resources Conservation Commission, now known as the Texas Commission on Environmental Quality.
The amendments to §3.51 remove an unnecessary definition for a term already defined in TAC, Title 4, Part 1, §1.1, which applies to the entire part.
The amendments to §3.52 clarify internal references to the Department's administrative rules and a reference to the Foundation's Board.
The amendments to §3.54 update a cross reference to §3.52.
The amendment to §3.71 clarifies internal references to the Department's administrative rules.
The amendments to §3.72 update a reference to the FSA and correct a grammatical error.
The amendment to §3.73 makes a minor editorial change.
The amendments to §3.74 correct a grammatical error to the rule's heading and update an internal reference within this chapter.
The amendments to §3.75 revise an internal reference within this chapter; update how a person can protest the issuance of a notice of violation and assessment of a penalty payment involving the failure to pay an eradication zone assessment; add language allowing the issuance of an order for such a penalty payment in the event someone does not respond to a notice; remove language requiring a hearing be held in the event someone does not respond to a notice; update a reference to the State Office of Administrative Hearings' rules of procedure; and incorporate language from the Code, Section 12.020, the Department's general statute on administrative penalties and related hearings, which establishes a 20-day period during which a hearing on a notice may be requested.
The amendments to §3.76 revise a reference to Section 74.115 of the Code; update how assessment penalty exemption forms can be obtained from the Department; limit assessment penalty exemptions to the particular crop year for which they are sought; and clarify that such future exemptions would apply to a new crop.
The amendments to §3.100 replace references to the "commissioner of agriculture" with "commissioner" to conform with usage in Chapter 74 of the Code and in this chapter.
The amendments to §3.102 change its heading to "Eradication Zone Activation; Grower Approval" and "zone" to "eradication zone" to conform with usage in Chapter 74 of the Code and in this chapter, and make minor editorial changes.
The amendments to §3.103 modify a cross reference to §3.102 to account for its new heading.
The amendments to §3.201 clarifies a reference to the Foundation's Board; increase the threshold amount for certain purchases or lease agreements, including bid announcements and formal solicitations, for which the Foundation must receive Department approval; and update a reference to Chapter 74, Subchapter D of the Code. This increased delegation of authority to the Foundation reflects current market prices for goods and services necessary to facilitate the Foundation's eradication efforts.
The amendments to §3.202 replace an initial reference to the foundation to "Texas Boll Weevil Eradication Foundation" and add "foundation" to the Board for greater clarity.
The amendments to §3.203 replace an initial reference to the Foundation to "Texas Boll Weevil Eradication Foundation" for greater clarity and remove an unnecessary reference to Section 74.1011 of the Code.
The amendments to §3.205 update references to the Department to conform with usage throughout Title 4, Part 1; revise statutory references to Section 74.1095 of the Code and Chapter 2001 of the Texas Government Code; remove a reference to a repealed statute; and modify references to the Commissioner for consistency with Chapter 74 of the Code and this chapter.
The amendments to §3.400 remove an unnecessary definition for a term already defined in TAC, Title 4, Part 1, §1.1, which applies to the entire part, and update the Foundation's official title.
The amendments to §§3.401 - 3.403 change references to the Department and Foundation for consistency with usage throughout TAC, Title 4, Part 1.
The amendments to §3.601 remove an unnecessary definition for a term already defined in TAC, Title 4, Part 1, §1.1, which applies to the entire part; update the Foundation's official title; update a definition for "certified organic crop" by removing a portion that refers to a repealed rule within this title allowing for emergency pest or disease treatments for organic or transitional crop; and update a definition for "transitional crop" by replacing an internal reference to a repealed rule within this title outlining the requirements for transitional crop to the current Department rule located at TAC, Title 4, Part 1, §18.300.
The amendments to §3.602 delete surplus language and clarify an internal reference to this chapter.
The amendments to §3.604 remove a reference to a repealed rule allowing for emergency pest or disease treatments for organic or transitional crop.
The amendments to §3.605 update an internal reference within this chapter and delete a reference to a repealed rule allowing for organic or transitional crop to be treated under former Department rule located at TAC, Title 4, Part 1, §18.10.
The amendments to §3.606 revise an internal reference within this chapter and remove a reference to a repealed rule providing for conventional treatment of organic or transitional crop under former Department rule located at TAC, Title 4, Part 1, §18.10.
The amendments to §3.607 modify references to the Commissioner for consistency with Chapter 74 of the Code and this chapter.
The amendments to §3.608 update references to the FDA and the USDA Risk Management Agency; update an internal reference within this chapter; remove a reference to a repealed rule allowing for compensation for destroyed organic or transitional cotton; and remove a related section providing compensation to such cotton that is treated, rather than destroyed, under §3.606.
The amendments to §3.609 correct an internal reference within the Department's administrative rules.
PUBLIC COMMENTS
Comment: The Department received a comment from the Texas Press Association (TPA) on §3.3 and §3.73. The comment opposed the proposed amendments to notice requirements from publication in newspapers to publication on the Foundation's website. TPA contends that publication on the Foundation's website would decrease the likelihood cotton producers would be aware of Board elections and referenda, thereby curbing participation from these producers affected by the outcome of these votes. TPA further contended that the means by which public notice would be given would be left to the discretion of the Foundation, resulting in a lack of consistency in terms of how notices would be received, which would undermine reliance on them. TPA added that the changes are contrary to public policy given the role of newspapers in providing independent oversight for the issuance of public notices given by government entities.
Response: The Department has reconsidered its proposed amendments to §3.3 and §3.73 and decided to adopt these rules with changes to the proposed text but retained existing requirements for notice to be published in newspapers.
Comment: The Department received a comment from the Foundation on §§3.6, 3.7, 3.23, and 3.75. The comment recommended the elimination of provisions in §3.6 and §3.7 addressing retention referenda conducted under Section 74.114 of the Code since the statute provides for one retention referenda per eradication zone after 2005, and each zone has conducted since conducted a referendum. The Foundation recommended adding language to §3.23(d) limiting pesticide application notification requirements for the Foundation to bee keepers who provide the locations of their hives to the Foundation that are adjacent to fields intended for spraying. The Foundation also recommended changing the proposed amendment to §3.75(d), setting a 20-day deadline for a request for hearing on a notice of violation from the date of receipt of the notice to a 20-day deadline from the date the notice was mailed to avoid any fact questions regarding the receipt of the notice.
Response: After further consideration, the Department views the proposed changes to §§3.6, 3.7, and 3.23 as outside the scope of the proposed amendments, and declines to include them at this time. The Department cannot follow the recommendation for §3.75 because the proposed amendment's provision beginning the 20-day time period in which to request a hearing on the date a notice of violation is received adheres to the statutory provision in in the Department's general authority to assess administrative penalties. i.e., §12.020 of the Code.
SUBCHAPTER A. ELECTION PROCEDURES
The amendments are adopted pursuant to Section 74.114 of the Code, which requires the Department to adopt rules for voting in Board elections and referenda to establish or continue eradication zones and Section 74.120 of the Code, which allows the Department to adopt rules necessary to administer the purposes of Chapter 74.
The amendments are adopted pursuant to Section 74.114 of the Code, which requires the Department to adopt rules for voting in Board elections and referenda to establish or continue eradication zones and Section 74.120 of the Code, which allows the Department to adopt rules necessary to administer the purposes of Chapter 74.
§3.3.Conduct of Elections; Notice.
(a) The election of Texas Boll Weevil Eradication Foundation (foundation) board members from each proposed eradication zone shall be held concurrently with the eradication zone referendum or referenda.
(b) The department may conduct an assessment referendum or referenda either in conjunction with a board election and eradication zone referendum or referenda or at a time subsequent to the initial board election and referendum or referenda.
(c) A board election and referendum or referenda conducted under the Texas Agriculture Code, Chapter 74, Subchapter D and this chapter must be preceded by at least 45 days' notice published in one or more newspapers published and distributed throughout the proposed or established eradication zone or zones, or area proposed to be added or transferred. The notice shall be published not less than once a week for three consecutive weeks. In addition, direct written notice of the election shall be given to each county extension agent of the Texas A&M AgriLife Extension Service (Extension Service) in the eradication zone or zones or area proposed to be added or transferred at least 45 days before the date of the election, referendum, or referenda.
(d) Notice provided in accordance with subsection (c) of this section shall include:
(1) the date of the election;
(2) the manner in which the election is to be conducted (i.e., by mail balloting);
(3) the purpose of the election and/or referendum;
(4) if appropriate, information regarding the election of board members, including how to get on the ballot;
(5) if an assessment referendum is being conducted, the maximum assessment to be paid by cotton growers having production in the eradication zone and the time for which the assessment will be collected;
(6) who to contact for more information; and
(7) if a referendum includes a proposition for approval of a third party contractor to carry out an eradication program, in accordance with the Code, §74.124, the name of the proposed contracting party.
(e) A referendum and/or board election conducted under the Code, Chapter 74, Subchapter D, and this chapter shall be conducted by mail ballot, with ballots returned by mail to the headquarters of the department.
(f) No ballot will be valid if postmarked after midnight on the last day for voting in the board election, referendum, or referenda.
(g) An eligible voter who has not received a ballot from the department, foundation or another source may request a ballot by mail by calling the department headquarters or by contacting the Extension Service office in a county within the eradication zone or proposed eradication zone, or other governmental office designated by the department.
(h) Instructions for county extension agents and voters will be available in each election from the department.
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 June 6, 2023.
TRD-202302075
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted pursuant to Section 74.120 of the Code, which allows the Department to adopt rules necessary to administer the purposes of Chapter 74.
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 June 6, 2023.
TRD-202302076
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted pursuant to Section 74.118 of the Code, which allows the Department to adopt rules regarding the areas where cotton may not be planted in eradication zones, and Section 74.120 of the Code, which allows the Department to adopt rules as necessary to carry out the purposes of Chapter 74.
§3.54.Failure To Comply with Prohibition.
(a) Upon notice by the foundation that a grower has failed to comply with a notice of prohibition provided in accordance with §3.53 of this chapter (relating to Notice of Prohibition), or has failed to obtain a permit for planting of noncommercial cotton in an eradication zone as required by §3.52 of this chapter (relating to Prohibition of Planting of Commercial and Noncommercial Cotton) the department shall take the following actions:
(1) Immediately upon identification of a field that is out of compliance, the department shall give written notice to the farm owner, to the grower, and, if known, to any lender having an interest in the field or the cotton, that the field and any cotton growing in the field are in violation of these rules.
(2) The notice shall further instruct the owner and grower to destroy any cotton located in the field within seven days after the date the written notice is received. Destruction shall be performed in a manner to prohibit the presence of live cotton plants.
(3) If the owner or grower cannot be located after reasonably diligent effort has been made by the department to locate such persons, the department shall publish the notice in a newspaper of general circulation in the county in which the land is located and post for a period of three consecutive days a copy of the notice on or in the immediate vicinity of the field in violation.
(4) If no response is received by the department from either the owner or grower within four days after the date of posting of the notice at the field, or if the department considers the response inadequate, the department shall have the cotton destroyed.
(b) The department may take any other action necessary to complete destruction of cotton in order to prevent the spread of boll weevils from the infested area.
(c) All costs incurred by the department in the destruction of cotton in accordance with subsection (a) of this section shall be reimbursed by the grower.
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 June 6, 2023.
TRD-202302077
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted under Section 74.115 of the Texas Agriculture Code (Code), which allows the Department to assess administrative penalties for failure to pay eradication zone assessments when due; Section 74.116 of the Code, which requires the Department to adopt rules setting criteria for exemptions from payment of assessment penalties; Section 74.118 of the Code, which allows the Department to adopt rules requiring participation in eradication programs in established eradication zones and to assess penalties for failure to comply with Department rules on participation in cost sharing and acreage reporting; and Section 74.120 of the Code, which allows the Department to adopt rules as necessary to carry out the purposes of Chapter 74.
§3.73.Notice of Requirement for Participation.
(a) After passage of a referendum establishing an eradication program and maximum assessment and/or upon adoption of any new requirements by the department and/or the foundation, a notice of the requirements to participate in the eradication program shall be published by the foundation in a newspaper having general circulation within the affected zone or zones for one day each week for three successive weeks.
(b) The notice required by subsection (a) of this section shall include any requirements for timely reporting of acreage to the foundation, compliance with rules of the department, and payment of the assessment established and approved for that zone.
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 June 6, 2023.
TRD-202302078
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted pursuant to Section 74.120 of the Code, which allows the Department to adopt rules as necessary to carry out the purposes of Chapter 74.
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 June 6, 2023.
TRD-202302079
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted pursuant to Section 74.120 of the Code, which allows the Department to adopt rules as necessary to carry out the purposes of Chapter 74; Section 74.152 of the Code, which requires the Department to adopt rules to implement a cost-sharing program as part of the eradication program, and Section 74.1095 of the Code, which requires the Department to establish by rule procedures for the informal review and resolution of claims arising out of certain acts of the Foundation.
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 June 6, 2023.
TRD-202302080
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
The amendments are adopted pursuant to Section 74.130 of the Code, which requires the Department to develop and adopt rules to allow cotton growers in eradication programs to use biological, botanical, or other non-synthetic pest control methods, and Section 74.120 of the Code, which allows the Department to adopt rules necessary to administer the purposes of Chapter 74.
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 June 6, 2023.
TRD-202302081
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360
4 TAC §§3.601, 3.602, 3.604 - 3.609
The amendments are adopted pursuant to Section 74.120 of the Code, which allows the Department to adopt rules necessary to administer the purposes of Chapter 74, and Section 74.125 of the Code, which requires the Department to adopt rules and procedures to protect the eligibility of Department-certified organic cotton growers, to ensure that organic and transitional certification meets national certification standards, to maintain the effectiveness of the eradication program, and to provide indemnity for organic cotton growers for reasonable losses resulting from production prohibitions or required destruction.
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 June 6, 2023.
TRD-202302083
Skyler Shafer
Assistant General Counsel
Texas Department of Agriculture
Effective date: June 26, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 936-9360