Part 1.
TEXAS DEPARTMENT OF AGRICULTURE
Chapter 3.
BOLL WEEVIL ERADICATION PROGRAM
Subchapter J. ORGANIC COTTON RULES
4 TAC §§3.600, 3.601, 3.604 - 3.608
The Texas Department of Agriculture (the department) adopts
amendments to Chapter 3, Subchapter J, §§3.600, 3.601 and 3.604-3.608,
concerning organic cotton production in boll weevil eradication zones, with
changes to the proposal published in the March 2, 2001, issue of the
The amendments are adopted to make the sections consistent with state
law and with emergency pest or disease treatment program provisions included
in the recently adopted National Organic Standards, to make the process for
determination of whether an organic field has reached a trap count trigger
more efficient, and to provide for compensation, with the approval of the
Texas Boll Weevil Eradication Foundation (the foundation), to an organic
grower who elects treatment of a field that has triggered under the emergency
pest or disease treatment program provision. Further, the amendments are
adopted to provide clearer and more efficient procedures regarding the growing
of organic cotton in active boll weevil eradication zones, which will facilitate
boll weevil eradication in Texas, while providing another mechanism by which
organic growers may receive reasonable compensation. The adoption of the
emergency pest and disease treatment program provisions of the National Organic
Standards will also benefit organic cotton production and marketability
because growers who are able to utilize this provision will not lose their
organic certification on that operation for years other than the year a direct
treatment is made.
Section 3.604 (b) has been changed by the department and also based on
a comment received from the Texas Boll Weevil Eradiction Foundation, Inc.(the
foundation), and changes this section to substitute the phrase "an individual
working for the foundation" with the phrase "an employee or independent contractor
of the foundation". This change is made to clarify that the provisions of
this subsection apply whether the inadvertent drift is caused by an employee
or independent contractor of the foundation. Subsection 3.605(e)(4) is changed
to correct a grammatical error. Subsection 3.606(d)(3) has been changed to
provide that the foundation's approval or denial of a grower's request for
conventional treatment shall be made in writing to both the grower and the
department. This requirement is added to ensure that notification of the
approval or denial is provided to all of the interested parties and made
in a timely manner. Subsection 3.606(d)(3) has also been changed to clarify
that if a request for treatment is denied, that either the grower, or if
the grower refuses, the department, must destroy the crop. Subsection 3.606(d)(5)
is changed also based on a comment received from the foundation suggesting
the correction of a grammatical error, and is changed to clarify that once
a grower is approved for treatment and his or her crop is treated by the
foundation, the grower will be compensated. Subsection 3.608(e)(3)(B) is
changed to correct a spelling error. The word "component" has been changed
to "competent". Section 3.608 is changed also based on a comment received
from the foundation and from an organic grower, and deletes the phrase "upon
agreement by both parties" from subsection (h). This change is made because
it is confusing and implies that additional agreements may be made in regards
to price or treatment. As stated in the rules, the decision of an organic
grower to accept treatment also includes the acceptance of the fixed compensation
rate of $.39 per pound if treatment is approved by the foundation and the
crop is treated.
The amendment to §3.601, concerning the definitions of a "certified
organic crop" and "transitional crop", provide that an application under
the emergency pest and disease treatment program provisions of Title 4, Chapter
18 will not interfere with the timeline for organic certification. The amendments
to §3.604, concerning protection of organic certification, also add
a reference to an application made under the emergency pest or disease treatment
program provisions of the National Organic Standards as an allowed treatment
which will not interfere with the certification status of an organic operation.
This section is also amended for purposes of clarification and to make it
consistent with the Texas Agriculture Code, §74.125, which allows for
the department to provide by rule indemnification for organic cotton growers
for reasonable losses resulting from a prohibition of production or for any
requirement to destroy organic cotton, but does not allow for indemnification
due to drift or inadvertent direct application of a prohibited material
by the foundation.
The amendment to §3.605, concerning trigger levels, at paragraph
(d)(1), replaces the Texas Agricultural Extension Service (TAEX) representative
on the technical review committee that determines if treatment is necessary
once a field has triggered with a representative from the department designated
by the commissioner. The amendment to paragraph (d)(6) provides for an election
by a grower to either destroy or allow the foundation to destroy a crop that
has triggered, or allow the crop to be treated by the foundation under the
emergency pest or disease treatment program provisions of Chapter 18. The
amendment to paragraph (e)(4), regarding who makes a determination as to
whether a crop has reached cut-out stage, also replaces the TAEX representative
with a department representative designated by the commissioner. The language
does not prevent the department's representative from consulting with a TAEX
Intergrated Pest Management agent or specialist, as deemed necessary.
The amendment to §3.606, concerning crop destruction, extensions
and conventional treatment, at subsection (d) provides that a grower may
elect for his crop to be treated under the emergency pest or disease treatment
program provision in Chapter 18, and if treatment is approved by the foundation
and the crop is treated, the grower will receive compensation in the form
of an organic premium based on the amount of cotton lint actually harvested
from the field. Another amendment provides that a grower must notify the
foundation of their election to allow treatment of their certified crop under
the emergency pest or disease treatment program provisions at least four
calendar days before the destruction deadline. The amendments further provide
that if a field is treated under the emergency pest or disease treatment
program provisions, such treatment will not affect the certification status
of the operation, but the crop cannot be sold, labeled, or represented as
"Organically Produced" or "Transitional-Organic Certification Pending".
The amendments to §3.607 clarify that growers may negotiate and enter
into voluntary indemnification agreements with the foundation and that such
agreements are to be approved by the commissioner. This makes this section
consistent with current practice. The amendments more accurately reflect
the involvement of growers in the zone in the negotiation process. The proposed
language does not prohibit the foundation from seeking input from grower
committees, or growers in general, in regards to voluntary agreements, and
the foundation may seek such input as it deems appropriate.
The amendments to §3.608(b) add the emergency pest or disease treatment
program option to the timeline by which a grower is entitled to compensation.
The amendments to subsection (e) clarify when notice of required destruction
is deemed received by a grower. New subsection (h) is added to establish
the amount of compensation a grower will receive if his crop is approved
by the foundation for treatment and treated by conventional means. Under
this section, a grower who voluntarily elects and is approved for conventional
treatment and whose crop is treated will be able to sell his cotton as conventional,
and will receive an organic premium in a fixed amount of $.39 per pound
for the actual weight of cotton lint harvested. The amount, on a per pound
basis, is the same premium amount established in §3.609 for payment
in the case of required destruction. The premium was determined by evaluating
the five-year average price of conventional cotton and organic lint and seed.
The department believes that allowing for the payment of a premium under
this section as well as allowing a grower to benefit from the sale of cotton
in the conventional market will provide reasonable compensation to the grower
and will also benefit the eradication program. Further, because under the
National Organic Standards, and upon adoption of proposed amendments to Texas'
state standards, the certification status of an operation is not jeopardized
by an application made under the emergency pest or disease treatment program
provisions, the marketability of an organic grower's cotton will not be affected
for future years.
In addition to the comments previously addressed, the department received
comments generally in support of the proposal from the foundation, Plains
Cotton Growers, the Permian Basin Grower Steering Committee, the Texas Organic
Marketing Cooperative, and individual organic growers. In addition to the
receipt of written comments, the department also received oral comments
at two public hearings held by the department in Lubbock and Lamesa, Texas
on March 14, 2001. Comments are summarized by section as follows. In regard
to §3.600, organic growers applauded the adding of language stating
as part of the purpose statement for the subchapter, that rules adopted by
the department ensure the maintenance of marketability of organic cotton.
In regards to §3.604, and amendments made to subsections (b) and (d),
organic growers objected to the deletion of language requiring the foundation
to indemnify a grower in the event that an organic crop is sprayed or drifted
on by the foundation. As noted previously, the amendment to subsection (b)
is made to make this section consistent with current law. The Texas Agriculture
Code, §74.125 only allows the department to require indemnification
for losses due to destruction of a crop or prohibition of growing of organic
cotton, and not for incidents involving direct or indirect spraying by the
foundation. While indemnification is not required by §3.604, the foundation
is charged, where appropriate, with assisting a grower in obtaining just
and reasonble compensation, whether a loss is due to an employee of the foundation
or an independent contractor of the foundation. Organic growers also expressed
concerns that without being held accountable for indemnification for losses
due to drift, in particular, the foundation will assume it has a license
to spray malathion without regard to who is damaged. As the state agency
responsible for oversight of the boll weevil eradication program, the department
will continue to work with the foundation to ensure that measures are taken
to minimize the incidence of drift or inadvertent direct application on
organic crops and will encourage the foundation to work with organic growers
to address problem areas regarding drift that have been raised by organic
growers. In addition, the department will investigate incidents involving
direct spray or drift by a foundation employee or contractor and seek administrative,
civil or criminal penalties, as appropriate. In regards to §3.606(d),
both conventional and organic growers were generally supportive of the department's
amendments to this subsection and the ability of an organic grower to be
treated under the emergency treatment program provisions of the National
Organic Rules, and the addition of compensation when a grower elects treatment.
Organic growers, however, expressed some concern that even if a grower agrees
to have his or her organic field treated, that there is no assurance that
the grower will be compensated by the foundation. The department believes
that the language of subsection (d) as adopted, does clearly provide that
once the foundation has approved the growers' request for treatment and
treatment occurs, that the grower will be compensated at the fixed premium
rate of $.39 per pound. Organic growers were also concerned that the foundation
alone determines whether or not a grower's request for treatment should be
accepted, a decision, they believe, should be made by the grower. The compensation
provision of §3.606 is consistent with the Code, §74.125, which
does not allow the department to require the foundation to indemnify growers
for losses other than when a crop is destroyed or growing of organic cotton
is prohibited. Compensation of growers who are treated does not run afoul
of §74.125 because treatment must first be approved by the foundation.
Further, it is the department's belief that the decision whether or not to
treat and compensate a grower will be made in the best overall interest of
the eradication program, and will involve some input from the grower.
Comments were received on several sections or subparts of sections on
which no amendments were proposed or on issues which were not addressed in
the proposal. Several comments were received on §3.605 both in regards
to the use and setting of trigger levels and on 3.605(e) and the definition
of "cut-out", and whether that should be used as a threshold for not being
able to treat an organic field. Comments by organic growers on the setting
of trigger levels requested that that trigger levels not be the sole determining
factor of whether destruction is required by the foundation. The department
believes that §3.605 already provides that other factors besides trap
count will be considered in making a decision as to destruction and that
the foundation will work with organic growers to come to agreement as to
alternative approaches to destruction, with destruction of a crop being the
last resort. Comments from the Foundation's counsel suggested changing the
definition of "cut-out stage" to 50% of cracked bolls to ensure greater uniformity
in fixing a stage when organic cotton will not require treatement or destruction.
Comments from the Foundation's Technical Advisory Committee stated that the
preference was to allow the Foundation to treat or destroy any acreage at
any time that there is a threat of boll weevil reproduction. Comments from
the Plains Cotton Growers recommended the use of a scale based on progress
of the program and also stated that reaching cut-out stage does not signify
that a field no longer poses a threat of reproduction. The department did
not propose any changes to the definition of cut-out because no need to change
the definition has been demonstrated. Other comments were received on §3.608,
concerning calculation of indemnity, in general, and specifically on §3.608(e)(1),
relating to formulas for indemnification when a grower is indemnified due
to crop destruction. Again, the department did not propose any changes to
the indemnification formula because no need to change the formula has been
demonstrated. The department will reconsider these issues after the 2001
growing season and make changes as it deems appropriate. Other general comments
received recommended the setting of a maximum amount of organic acreage which
can be destroyed in any crop year in order to ensure the protection of organic
markets. Again, the concern of organic growers is that under the rules,
the foundation may choose to destroy or treat all organic cotton crops, when
treatment or destruction should only be required as a last resort. The department
believes that the process established in §3.605, which sets out how
it is determined whether or not destruction or treatment will be required,
provides protection to organic growers to the extent that the determination
is not made by the foundation, but by a technical review committee considering
several factors besides the trap count, and must be approved by the commissioner
before any action may be taken. As noted in the statement of purpose of this
subchapter, the commissioner will consider not only the ultimate success
of the eradication program, but also the affect on the certification and
marketability of Texas organic cotton.
The amendments are adopted under the Texas Agriculture Code
(the Code), §74.125, which provides the department with the authority
to develop rules and procedures to protect the eligibility of organic cotton
growers to be certified by the commissioner of agriculture, ensure that certification
by the commissioner meets national certification standards and in all events
maintain the effectiveness of the boll weevil or pink bollworm eradication
program administered under the Code, Chapter 74, Subchapter D, including
rules that provide indemnification for organic cotton growers for reasonable
losses that result from prohibition or production of organic cotton or from
any requirement of destruction of cotton; and, the Code, §74.120, which
provides the department with the authority to adopt reasonable rules to carry
out the purposes of the Code, Chapter 74, Subchapter D.
§3.604.Protection of Organic Certification.
(a)
The foundation will take steps reasonably necessary to
protect the certification of organic crops during the course of its normal
eradication activities.
(b)
In the event the foundation or an employee or independent
contractor of the foundation inadvertently treats a certified organic or
transitional field or portion of a crop, either directly or through drift,
with prohibited materials, other than an application allowed under emergency
pest or disease treatment program provisions of Chapter 18 of this title
(relating to Organic Standards and Certification), the foundation will, to
the extent appropriate, assist the grower in obtaining just and reasonable
compensation.
(c)
For purposes of this section, a determination of whether
or not a direct treatment or drift occurred will be made by the department
in accordance with established procedures.
(d)
In the event of a confirmed case of direct treatment or
drift of chemical applied for or by the foundation, and where appropriate,
the department will investigate and seek such penalties as warranted under
the Texas Agriculture Code, Chapter 76, and Chapter 7 of this title (relating
to Pesticides).
§3.605.Trigger Levels.
(a)
During the first season of treatment in an active boll
weevil eradication zone, the "diapause" phase of the program, all organic
producers may plant certified organic or transitional cotton consistent with §3.602
of this title (relating to Planting of Certified Organic or Transitional
Cotton in Active Eradication Zones), without regard to boll weevil trap captures.
Producers will be required to communicate with the foundation as prescribed
in §3.603 of this title (relating to Communication with Organic Producers;
Notification of Organic Production).
(b)
Certified organic or transitional cotton fields in active
boll weevil eradication zones will adhere to the same trap count trigger
levels that are set by the foundation and pursuant to subsection (c) for
conventional cotton fields in that zone beginning in the first season-long
phase of the program and continuing each season thereafter.
(c)
Trap count triggers will be set under the following conditions.
(1)
The foundation will inform organic growers of the trigger
levels at the beginning of each season.
(2)
The trap count trigger level may change during the season,
and when these changes are made, the foundation will inform organic growers
at least 48 hours prior to implementing a new trap count trigger level.
(3)
Traps around organic cotton fields will be checked at the
same interval as traps around conventional fields in the same zone.
(4)
The establishment of the trap count trigger level and placing
of traps will be based on sound scientific and entomological considerations
and shall be implemented in a fair and equitable manner.
(d)
If an organic or transitional field surpasses the set trap
count trigger level, a technical review committee will determine if destruction
of that field or other alternative action should be required using the following
procedures.
(1)
This committee will consist of the foundation program
director or his designee, a member of the foundation's technical advisory
committee appointed by the commissioner, and a department representative
designated by the Commissioner.
(2)
No less than two committee members will meet at the field
in question within 48 hours after the field surpasses the trap count trigger
level.
(3)
The committee will consider factors established by the
foundation's technical advisory committee and approved by the foundation's
board and the commissioner including, but not limited to, crop damage, trap
captures in nearby traps, and cost to the eradication program.
(4)
The technical review committee shall make a written recommendation
to the commissioner on the organic cotton field in question specifying the
recommended actions and justification for those actions. This recommendation
shall be made within 48 hours after the field surpasses the trap count trigger
level.
(5)
The commissioner shall review the technical review committee's
recommendation and make a final determination on the action required within
one business day of receiving the committee's recommendation.
(6)
Should the commissioner determine that some type of eradication
activity should occur, the grower may elect to either destroy the crop as
prescribed in §3.606 of this title (relating to Crop Destruction),
or may elect to allow the crop to be treated under the emergency pest or
disease treatment program provisions of Chapter 18 of this title (relating
to Organic Standards and Certification).
(e)
Destruction of an organic cotton crop under this section
will not be required, regardless of trap captures, once the crop in that
field has reached cut-out stage for that season. This stage will be determined
through the following process.
(1)
For purposes of this section, "cut-out stage" is defined
as at least 50% of cotton plants in a field having four or fewer nodes above
white flower.
(2)
The grower will contact the foundation when they believe
their crop has reached cut-out stage.
(3)
A foundation representative will inspect the field within
48 hours after being contacted by the grower to confirm that it has reached
cut-out stage.
(4)
If there is a dispute relating to the stage of the crop,
a department representative designated by the commissioner will inspect
the crop and determine if cut-out stage has been reached.
(5)
The foundation will notify the department when it is determined
that a field has reached cut-out stage.
§3.606.Crop Destruction; Extensions: Choice of Conventional Treatment.
(a)
Crop destruction. A grower who has been notified that
destruction of their organic cotton crop is necessary will have no more than
seven calendar days from the date of receipt of notification to destroy that
crop by plow-up.
(b)
Extension requests. A request for a deadline extension
will be handled as follows.
(1)
The department may, on written request by a grower, grant
an extension of the destruction deadline. Request for extensions may be
granted for the following reasons:
(A)
weather factors;
(B)
illness;
(C)
mechanical failure; or
(D)
other good cause, as determined by the department.
(2)
A written request for an extension of the destruction
deadline must be submitted on a form prescribed by the department.
(3)
Request forms may be obtained from either the department
or the foundation.
(4)
Failure to complete the form in its entirety may result
in denial of the request.
(5)
All requests for extensions shall be postmarked on or prior
to the destruction deadline
(c)
Penalties for not destroying a crop by the deadline.
(1)
If the crop is not destroyed within seven calendar days
of the date of notification or expiration of an approved extension, the
compensation the grower is entitled to under §3.608 of this title (relating
to Calculation of Indemnity), for that acreage will be decreased by 50%.
(2)
If the crop is not destroyed within 14 calendar days of
the date of notification or expiration of an approved extension, the grower
will no longer be entitled to compensation under §3.608 of this title,
for that acreage.
(3)
The department may assess an administrative penalty of
not more than $5,000 per day if the crop is not destroyed within 15 calendar
days after the date of notification or expiration of an approved extension.
(4)
If the crop is not destroyed by the 15th day after the
date of notification or expiration of an approved extension, the department
or its designee may destroy the crop.
(d)
Choosing conventional treatment.
(1)
In lieu of crop destruction, a grower who qualifies under
the emergency pest and disease treatment program provisions of Chapter 18
of this title may notify the foundation and the department in writing that
he or she desires conventional treatment within three days of receiving notice
that the field must be treated or destroyed. Under Chapter 18 of this title,
any harvested crop or plant part to be harvested that has been treated cannot
be sold, labeled, or represented as Organically Produced or Transitional-Organic
Certification Pending; this treatment will not affect the certification status
of the operation or future crops.
(2)
Such notification must be provided in writing to both the
foundation and the department and must be postmarked, if sent by mail, or
faxed at least four days before the destruction deadline.
(3)
Once notified, the foundation shall approve or deny in
writing, to the grower and the department, the request for conventional
treatment within 48 hours. If the request is approved, the foundation may
treat the crop with conventional methods. Should the request be denied, the
grower, or if the grower refuses, the department or its designee, must destroy
the crop as outlined in subsections (a) and (c) of this section.
(4)
Once the foundation has approved the grower's request for
conventional treatment, the Foundation will treat the field in the same
manner as all conventional cotton fields in the same zone.
(5)
A grower whose cotton is approved for treatment by the
foundation and is treated under Chapter 18 of this title, will be entitled
to compensation under §3.608, subsection (h), of this title (relating
to Calculation of Indemnity or Compensation), for that acreage.
§3.608.Calculation of Indemnity or Compensation.
(a)
To be eligible for indemnification if a crop must be destroyed
under §3.606 of this title (relating to Crop Destruction; Extensions;
Choice of Conventional Treatment), a grower must report the Farm Service
Agency farm numbers, physical locations, and row acreage on each farm that
the grower will use as the base acreage calculated in §3.607 of this
title (relating to Eligibility for Indemnification or Compensation), to
the foundation before planting each year on a form provided by the foundation.
(b)
If certified organic or transitional cotton on the grower's
base acreage is destroyed through the requirements of this subchapter, or
if the acreage is treated by the foundation under emergency pest or disease
treatment program provisions as provided under Chapter 18 of this title (relating
to Organic Standards and Certification), any indemnification or compensation
will be made by October 31 of that year.
(c)
If the commissioner determines that the foundation is
delinquent in a payment owed to a grower, the foundation will be responsible
for an additional payment to the grower of 1.5% of the amount owed per month
of delinquency.
(d)
The following factors will be considered when calculating
indemnity payments for organic cotton growers whose cotton is required to
be destroyed in accordance with §3.605 of this title (relating to Trigger
Levels) and §3.606 of this title (relating to Crop Destruction; Extensions;
Choice of Conventional Treatment):
(1)
eligible acreage - the base acreage, in row acres planted
to certified organic or transitional cotton, determined as provided in §3.607
of this title (relating to Eligibility for Indemnification), and identified
for that field as described in this section. Organic or transitional cotton
must be planted on this acreage by the final planting date set by the Risk
Management Agency of the United States Department of Agriculture in the
county in which the crop is planted.
(2)
yield - the yield per acre will be determined by using
the Actual Production History per row acre planted to cotton for that farm,
as determined by the Risk Management Agency of the United States Department
of Agriculture; and
(3)
conventional cotton price - the conventional cotton price
will be determined by the upland cotton price election for an APH policy
in the county in which the organic or transitional cotton in question lies
for the current crop year. This price for the coming crop year is published
by the Risk Management Agency of the United States Department of Agriculture
before December 31 of each year.
(e)
When a grower is entitled to indemnification as a result
of crop destruction, the foundation will indemnify the grower in accordance
with the following formulas:
(1)
If the notice is received by the grower less than thirty
days after the final planting date in that county that destruction of a
crop is required, the indemnity will be: eligible acreage x yield x (conventional
cotton price + $0.39) X 50%, with no mitigation required; or
(2)
If the notice is received by the grower thirty days or
more after the final planting date in that county that destruction of a
crop is required, the indemnity will be: eligible acreage x yield x (conventional
cotton price + $0.39) X 65%, with no mitigation required.
(3)
For purposes of this subsection, notice is deemed received
by the grower:
(A)
upon hand-delivery of the notice to the grower or an authorized
representative by a department employee;
(B)
if mailed by certified mail, return receipt requested,
upon the date of delivery as shown on the green card receipt, if no delivery
date is shown, three days after the date the department deposits the notice
in the mail as shown by department records or other competent evidence; or
(C)
if mailed by regular mail, and upon showing of proof by
the department that the notice was deposited in the U.S. mail and sent to
grower's last known mailing address, after 3 days from date of mailing.
(f)
After a zone has been declared eradicated by the commissioner:
(1)
any grower who plants certified organic or transitional
cotton will be eligible for indemnification on an acre per acre basis only,
if all or part of a crop is required to be destroyed;
(2)
indemnification will only be available for certified organic
and/or transitional cotton acreage that is required to be destroyed; and
(3)
indemnification will be acreage x yield x (conventional
cotton price + $0.39) X 75%, with no mitigation required.
(g)
The commissioner will resolve any dispute between the grower
and the foundation regarding the amount of indemnification.
(h)
If a field is treated under §3.606(d) of this title
(relating to Crop Destruction; Extensions; Choice of Conventional Treatment)
by conventional means the foundation will compensate the grower at a rate
of $0.39 per pound of lint harvested from that field that crop year.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 11, 2001.
TRD-200102099
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: May 1, 2001
Proposal publication date: March 2, 2001
For further information, please call: (512) 463-4075
Chapter 18.
ORGANIC STANDARDS AND CERTIFICATION