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) proposes
amendments to Chapter 3, Subchapter J, §§3.600, 3.601 and 3.604-3.608,
concerning organic cotton production in boll weevil eradication zones. The
amendments are proposed 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 had triggered under the emergency pest or disease treatment
program provision.
The department adopted new Subchapter J, §§3.600-3.606 to be
effective on May 15, 2000, and §§3.607-3.609 to be effective on
June 14, 2000. In the adoption preamble of these rules, the department stated
its intent to review the effectiveness of these sections after the 2000 growing
season and to conduct public hearings in January of 2001 to take public comment
on whether or not changes should be made to the rules for the next growing
season. Public hearings were conducted by the department on January 8, 2001
in Lubbock and Lamesa, Texas. Approximately 20 individuals attended the hearing
in Lubbock and 25 in Lamesa, with a total of 9 individuals providing oral
testimony. In addition to conducting hearings, the department accepted written
comments on the regulations until January 18. Many written comments from the
previous rulemakings were resubmitted. General comments regarded the department's
responsibility to maintain the viability of organic production in Texas and
the department's oversight role over the boll weevil eradication program and
the activities of the Texas Boll Weevil Eradication Foundation (the foundation),
the concerns of growers over the use of malathion as opposed to alternative
control methods, the concern that the eradication of the boll weevil may take
precedence over the private property rights of organic growers and opposing
comments on the amount of compensation to be paid organic growers in the event
a crop must be destroyed. Organic growers feel that the indemnification formula
would not pay enough, while conventional growers and their representatives
feel that organic growers will be paid too much under the indemnification
formula. Also in regard to indemnification, conventional growers requested
that the production history used to determine indemnification be based on
the actual organic cotton production of the particular field, rather than
an average of up to 10 years.
Other comments expressed the opinion among organic growers that the foundation
is not doing what it can to minimize drift onto organic crops and that the
foundation should be required to indemnify a grower in the event drift or
an inadvertent direct application occurs. In regard to trigger levels, comments
from organic growers requested that an organic field and conventional field
be judged in the same manner-that no organic fields be destroyed unless it
exceeds trap counts in conventional fields in the zone and that an organic
grower be appointed to the technical review committee that determines when
a field has triggered. Other comments requested that a representative of the
department be appointed to the committee. Other comments requested a change
in the definition of "cutout". Comments were also received regarding the newly
adopted National Organic Standards that establish organic certification requirements
and the allowance for treatment of an organic field under an emergency pest
and disease treatment program provision included in those rules. The comments
suggested that this provision would allow for treatment of an organic field
that has triggered without causing the organic grower to lose his or her certification
status. Upon a review of all comments and considering the experience to date
that the department has gained with the implementation of the regulations
during the 2000 crop year, the department is proposing changes to §§3.600,
3.601 and 3.604-3.608, as follows.
The proposed amendments to §3.600 add, based on comments received,
statutory language found in §74.125 of the Texas Agriculture Code, that
rules and procedures for organic cotton production are also to ensure that
certification continues to meet national standards for organic cotton to maintain
marketability; and add reference to an application made under the emergency
pest or disease treatment program provisions of the National Organic Standards
as an allowed treatment that will not affect the certification status of an
organic operation. The recently adopted National Organic Standards, which
establish standards for certification of organic production, provide that
when a prohibited substance is applied to a certified operation under an emergency
pest or disease treatment program, and the certified operation otherwise meets
the requirements for certification, the certification status of the operation
will not be affected as a result of the application of the prohibited substance.
However, the National Standards require that any harvested crop or plant part
to be harvested that has contact with the prohibited substance cannot be sold,
labeled, or represented as "Organically Produced" or "Transitional-Organic
Certification Pending". The boll weevil eradication program is covered by
this federal rule. The department is also proposing, in a separate submission,
amendments to its organic certification program rules found in Title 4, Chapter
18, to also make those rules consistent with the National standards in regards
to the affect of treatment made to an organic operation under emergency pest
and disease treatment programs.
The proposed amendment to §3.601 concerns the definitions of a "certified
organic crop" and "transitional crop". These definitions are being amended
to 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 proposed 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
being 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. Consistent with statutory authority, this section
does not allow for the department to require indemnification by the foundation
for losses due to drift or an inadvertent direct treatment of an organic crop,
nor was this section intended to require such indemnification. The department's
intent was for the foundation to take a role in working with its contract
applicators and organic producers to obtain reasonable compensation for organic
growers where it was determined by the department that drift or an inadvertent
direct treatment occurred. The proposed amendments clarify the foundation's
role in the process. New language is also added to provide that where appropriate,
the department may seek penalties against an applicator making an application
for the foundation either as a contractor or an employee. 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.
The proposed amendment to §3.605, concerning trigger levels, at subsection
(d)(1), replaces the Texas Agricultural Extension Service (TAEX) representative
on the technical review committee that determines when a field has triggered
with a representative from the department designated by the commissioner.
The proposed amendment to subsection (d)(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. These amendments
are proposed based on comment received and at the request of the TAEX. The
proposed language does not prevent the department's representative from consulting
with a TAEX IPM agent or specialist, as deemed necessary. The proposed amendment
to subsection (d)(6) provides for an election by a grower to either destroy
a crop that has triggered or allow the crop to be treated under the emergency
pest or disease treatment program provisions of Chapter 18.
The proposed 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 approved by the foundation, may receive compensation
in the form of an organic premium based on the amount of cotton actually harvested
from the field. Another amendment provides that a grower must notify the foundation
of their agreement to allow treatment of their certified crop under the emergency
pest or disease treatment program provisions within 3 calendar days of notification
that destruction or treatment is necessary. 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 proposed 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. This amendment
is made based on comments received and the department's determination that
although grower steering committees may be involved in the negotiation, they
are not formal entities to which the department can delegate the function
of being the primary negotiator. The proposed language does not prohibit the
foundation's seeking input from grower steering committees, or growers in
general, in regards to voluntary agreements, and the foundation may seek such
input as it deems appropriate.
The proposed 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 proposed amendments to subsection (e) clarify when notice
of required destruction is deemed received by a grower. Proposed new subsection
(h) is added to establish the amount of compensation a grower will receive
if his crop is treated by conventional means and such compensation is approved
by the foundation. Under this proposal, a grower who voluntarily elects and
is approved for conventional treatment will be able to sell his cotton as
conventional, and may, upon approval by the foundation, receive an organic
premium of $0.39 per pound for the actual weight of cotton 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. As noted in the adoption
preamble for the adoption of §§3.607-3.609, 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.
Brian Murray, Special Assistant for Producer Relations, has determined
that for the first five year period that the amended sections are in effect,
there will be no fiscal implications for state or local government as a result
of enforcing or administering the sections. Costs of administering and enforcing
the sections, including any cost of grower compensation will be borne by the
foundation, using other than state funds.
Mr. Murray also has determined that for each year of the first five years
the amended sections are in effect the public benefit anticipated as a result
of enforcing the sections will be having in place 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 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. The anticipated economic impact on persons
or small businesses operated or owned by organic growers who will be required
to comply with the amended sections, as proposed, is not determinable at this
time. The department believes that only the amendments relating to the option
to treat an organic field and possibly receive compensation based on actual
yield will have an economic impact on growers. Because the option is voluntary
as to the grower, there is no actual requirement to participate. If this option
is utilized, the impact would be a positive one, since the grower would benefit
from the sale of cotton as conventional and may also receive an organic premium
from the foundation. The amount in which an individual grower would benefit
would depend on the yield of the affected field as the $0.39 per pound premium
would be applied to actual yield.
Comments on the proposal may be submitted to Brian Murray, Special Assistant
for Producer Relations, P.O. Box 12847, Austin, Texas 78711, and must be received
no later than 30 days from the date of the publication of this proposal in
the
Texas Register
.
The amendments are proposed 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.
The code that will be affected by the proposal is the Texas Agriculture
Code, Chapter 74, Subchapter D.
§3.600.Statement of Purpose and Authority.
The Texas Agriculture Code (the Code), Chapter 74, Subchapter D, §74.1011
designates the Texas Boll Weevil Eradication Foundation, Inc. (the foundation)
as the entity to carry out boll weevil and pink bollworm eradication in Texas.
The Code, §74.120, provides the Commissioner of Agriculture with the
authority to adopt reasonable rules to carry out the purposes of Chapter 74,
Subchapter D. The Code, §74.125 provides that the Commissioner shall
adopt rules and procedures to protect the eligibility of certified organic
and transitional cotton production in active eradication zones
and ensure
that organic and transitional certification by the commissioner continue to
meet national certification standards in order for organic cotton to maintain
international marketability,
while ensuring the ultimate success of
the boll weevil eradication program in Texas. Section 74.125 further provides
that rules adopted under that section may provide indemnity for the organic
cotton growers for reasonable losses that result from a prohibition of production
of organic cotton or destruction of organic cotton. Mitigation of losses with
production of an alternative crop may be required by the foundation board
of directors. The foundation board may not treat or require treatment of organic
cotton with chemicals that are not allowed for use on certified organic cotton
except as provided in Chapter 18 of this title (relating to Organic Standards
and Certification)
. Plow-up of an organic cotton field may be required
as an alternative to treatment with chemicals.
§3.601.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
(No change.)
(2)
Certified organic crop--A crop which has undergone independent
third party verification by the department or a registered private certifying
agent that the crop has been produced in compliance with the Texas Organic
Standards, Chapter 18 of this title (relating to Organic Standards and Certification),
and qualified for full organic status, including the requirement that the
land on which the crop is grown has had no prohibited materials applied for
at least 36 months prior to harvest
, except for a treatment made under
the emergency pest or disease treatment program provisions in Chapter 18 of
this title (relating to Organic Standards and Certification)
.
(3)-(6)
(No change.)
(7)
Transitional crop--A crop which has undergone independent
third party verification by the department or a registered private certifying
agent that the crop has been produced in compliance with the Texas Organic
Standards, Chapter 18 of this title, and fulfills all requirements except
the 36 months required for full organic status. A certified transitional organic
crop must be produced on land that has had no prohibited materials applied
for at least 12 months prior to harvest
, except for a treatment made
under the emergency pest or disease treatment program provisions found in
Chapter 18 of this title
.
(8)-(9)
(No change.)
§3.604.Protection of Organic Certification.
(a)
(No change.)
(b)
In the event the foundation or an individual working for
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)
(No change.)
(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)-(c)
(No change.)
(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)-(5)
(No change.)
(6)
Should the commissioner determine that some type of eradication
activity should occur, the grower may
elect
[
(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)
(No change.)
(2)
The grower will contact the foundation when they believe
their crop has reached cut-out stage
.
[
(3)
(No change.)
(4)
If there is a dispute relating to the stage of the crop,
a department representative designated by the commissioner
[
(5)
(No change.)
§3.606.Crop Destruction; Extensions : [
(a)-(c)
(No change.)
(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 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 must destroy the crop as outlined
in subsection (a) of this section.
(4)
[
(5)
[
§3.607.Eligibility for Indemnification.
(a)
Certified organic and/or transitional cotton growers in
active eradication zones may
negotiate and
enter into voluntary
indemnification
agreements with
the Foundation,
[
(b)-(c)
(No change.)
§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
[
(c)-(d)
(No change.)
(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)-(2)
(No change.)
(3)
For purposes of this subsection, notice is deemed received
by the grower:
(A)
upon [
(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 component evidence;
[
(C)
(No change.)
(f)-(g)
(No change.)
(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 upon agreement by both
parties 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 proposal 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 February 16, 2001.
TRD-200100980
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 1, 2001
For further information, please call: (512) 463-4075
indemnify the grower in accordance with subsection (d) of this section. This
indemnification will continue on an annual basis until the earliest date that
the exposed field or crop is eligible to return to the status it held prior
to the inadvertent treatment by the foundation.
]
the grower will receive just and reasonable compensation
in an amount recommended by the foundation board and approved by the commissioner
].
and an Integrated Pest Management (IPM) specialist,
or his designee, from the Texas Agricultural Extension Service serving the
respective area
].
be required
]
to either destroy the crop as prescribed in §3.606 of this title (relating
to Crop Destruction), or may
elect
[
choose
] 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)
.
;
]
the
IPM agent/specialist or county extension agent serving the area
], will
inspect the crop and determine if cut-out stage has been reached.
, ] Choice of Conventional Treatment.
chooses to cancel his or her organic or transitional certification on
the acreage that has been ordered to be destroyed so that conventional treatment
may be used
].
The same penalties described in subsection (c) will apply if notification
is not received by the destruction deadline.
]
(3)
]
Once
[
After
both
] the foundation [
and the department receives
]
has approved the grower's request for conventional treatment
[
this notification
], the Foundation will treat the field in the same
manner as all conventional cotton fields in the same zone.
(4)
] A grower [
choosing to
]
treated under Chapter 18 of this title
[
cancel organic
certification
] will [
not
] be entitled to compensation under §3.608
(h)
of this title
(relating to Calculation of Indemnity or Compensation)
, for that acreage
, if approved by the foundation
.
grower
steering committees to negotiate indemnification
] provided that those
agreements are negotiated and made in good faith by both parties and are approved
by the [
foundation and the
] commissioner.
the grower will
be entitled to
] indemnification
or compensation will be made
by October 31 of that year.
service of the notice by
] hand-delivery
of the notice
to the grower or an authorized representative by a department
employee;
by the department
]; or
Chapter 18.
ORGANIC STANDARDS AND CERTIFICATION