Proposed Rules Title 4

TITLE 4. AGRICULTURE

Part 1. TEXAS DEPARTMENT OF AGRICULTURE

Chapter 1. GENERAL PROCEDURES

Subchapter O. HOME-DELIVERED MEAL GRANT PROGRAM

4 TAC §§1.950 - 1.962

The Texas Department of Agriculture (Department) proposes new Chapter 1, Subchapter O, §§1.950 - 1.962, concerning the Department's new home-delivered meal grant program. This new program was established by the enactment of House Bill 407 by the 80th Legislature, Regular Session, 2007. House Bill 407 provides that the Department shall establish a home-delivered meal grant program to benefit homebound elderly and disabled persons in the state of Texas. New §1.950 provides a statement of purpose of the program. New §1.951 provides definitions to be used in the new subchapter. New §1.952 provides how the program will be administered. New §1.953 provides county requirements. New §1.954 provides eligibility requirements for receiving a grant under the program. New §1.955 provides the process and information required for application. New §1.956 provides nutritional standards for meals served under the program. New §1.957 provides that a grantee must comply with federal, state and local laws and regulations. New §1.958 provides requirements for service of meals under the program. New §1.959 provides requirement for documentation of eligibility of persons served by the program. New §1.960 provides permissible use of grant funds. New §1.961 provides recordkeeping and records retention requirements for grantees. New §1.962 provides requirements for access to grantee records by the Department, and other authorized governmental entities.

Brian Murray, assistant commissioner for external relations, has determined that for the first five-year period the new sections are in effect there will be no fiscal implications for state or local government as result of enforcing or administering the new sections.

Mr. Murray also has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections will be the establishment of a grant program that will allow entities providing home-delivered meals to the homebound elderly and disabled to supplement and extend their services. For the first five-year period the new sections are in effect, there will be no costs anticipated to microbusinesses or small businesses. There may be a minimal cost for nonprofit entities that choose to apply for a grant under the program to meet eligibility requirements regarding nutrition standards and recordkeeping. The cost will depend on the existing administrative capabilities of the applicant, which will vary greatly from county to county, and is not determinable at this time.

Comments on the proposal may be submitted to Brian Murray, Assistant Commissioner for External Relations at the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

New §§1.950 - 1.962 are proposed under House Bill 407, 80th Legislature, Regular Session, 2007, enacting new §12.042 of the Texas Agriculture Code, which provides that the Department shall establish a home-delivered meal grant program to benefit homebound elderly and disabled persons in the state of Texas; and the Texas Agriculture Code §12.016, which provides the department with the authority to adopt rules for administration of its duties under the code.

The Texas Agriculture Code, Chapter 12, is affected by the proposal.

§1.950.Purpose.

This subchapter establishes the requirements for eligible organizations to apply for and obtain grant funds to supplement and extend existing services related directly to delivery of meals to Homebound Elderly persons and Homebound persons with a Disability, through the Home-Delivered Meal Grant Program; and establishes the requirements for related nutritional standards, recordkeeping and documentation related to the Program.

§1.951.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Approved Organization--An organization that submitted an application under this subchapter that was subsequently approved by the Department.

(2) Department--The Texas Department of Agriculture.

(3) Dietary Consultant--A registered dietitian who is licensed by the Texas State Board of Examiners of Dietitians; or a person with a baccalaureate degree with major studies in food and nutrition, dietetics, or food service management, who is currently employed as a dietician or dietary consultant in a hospital, nursing facility or school.

(4) Disability--A physical, mental or developmental impairment, temporarily or permanently limiting an individual's capacity to adequately perform one or more essential activities of daily living, which include, but are not limited to, personal and health care, moving around, communicating, and housekeeping.

(5) Elderly--An individual who is 60 years of age or older.

(6) Fully Funded--A meal for which home-delivered meal organizations negotiate and sign a contract with the Department of Aging and Disability Services or an area agency on aging, and receive funds, whatever the amount may be, in accordance with applicable state and federal laws and regulations.

(7) Grantee--An organization that has received grant funds under this subchapter.

(8) Home-delivered meal--Individual sized portions of pre-prepared foods that, in the aggregate, provide not less than 1/3 of the Recommended Dietary Allowance (RDA) of nutrition for an adult.

(9) Homebound--A person who is unable to leave his or her residence without aid or assistance or whose ability to travel from his or her residence is substantially impaired.

(10) Organization--A qualifying governmental agency or nonprofit private organization that is exempt from taxation under §501(a), Internal Revenue Code of 1986, as an organization described by §501(c)(3) of that code, which is a direct provider of home-delivered meals to homebound elderly persons or persons with disabilities in this state.

(11) Program--The Home-Delivered Meal Grant Program.

(12) State Fiscal Year--The period between September 1st of any year and August 31st of the subsequent year.

§1.952.Administration of the Program.

(a) The Department annually shall determine:

(1) the total amount of money available for grants under this subchapter;

(2) the number of residents at least 60 years of age in this state, according to the most recent federal decennial census; and

(3) the number of residents at least 60 years of age in each county in this state, according to the most recent federal decennial census.

(b) Subject to §1.953 of this title (relating to County Grant Required) and subsection (d) of this section, the Department shall make grants in an amount equal to one dollar for each meal that each Approved Organization delivered to Homebound Elderly persons or persons with a Disability in the county in the preceding State Fiscal Year that was not Fully Funded.

(d) Except as provided by §1.953 of this title, and subsections (b) and (f) of this section, grants from the Department to Approved Organizations in a county in a State Fiscal Year may not exceed an amount determined by the following formula: CR x (TD/SR), where "CR" is the number of residents at least 60 years of age in the county; "TD" is the total amount of money appropriated to the Department for that State Fiscal Year to make grants, less the Department's administrative expenses; and "SR" is the number of residents at least 60 years of age in this state.

(e) If more than one "Approved Organization" delivers meals in a county, the Department shall reduce the grants proportionally to each qualifying organization in that county so that the total amount of the grants to the organizations does not exceed the amount described by subsection (d) of this section.

(f) If the total amount of the grants made statewide by the Department under subsection (b) of this section is less than the amount appropriated to fund the program under this section in a State Fiscal Year, the Department shall use the unspent funds to proportionally increase the grants to each Approved Organization.

(g) The Department may use up to five percent of the appropriated funds for administration of the program.

§1.953.County Grant Required.

(a) Before an Organization may receive a grant from the Department, the county in which the Organization provides meals must make a grant to the Organization. The grant must be for the provision of home-delivered meals to the homebound elderly and disabled in that county.

(b) A county may make a grant to more than one Organization in the county.

(c) If the county makes a grant to the Organization in an amount that is less than 25 cents for each person at least 60 years of age who resides in the county, according to the most recent federal decennial census, the maximum amount the Department may provide to Organizations in the county is reduced to an amount in proportion to the amount by which the county grant is less than 25 cents for each elderly resident.

§1.954.Eligibility For Grant.

An Organization is eligible to receive a grant under this subchapter if it:

(1) currently administers a home-delivered meal program to Elderly persons and/or persons with a Disability;

(2) (if a nonprofit private organization) has a volunteer board of directors;

(3) practices nondiscrimination;

(4) has an accounting system or fiscal agent approved by the county where it provides meals;

(5) has a system to prevent the duplication of services to clients;

(6) has received a grant from the county in which the Organization is delivering meals, in accordance with Section 1.953 of this title (relating to County Grant Required);

(7) has submitted an application in accordance with §1.955 of this title (relating to Application); and

(8) agrees to use funds received under this subchapter only to supplement or extend existing home-delivered meal services.

§1.955.Application.

(a) The application shall be in a form prescribed by the Department, in accordance with this subchapter.

(b) The application submitted to the Department in accordance with §1.954 of this title (relating to Eligibility), shall:

(1) be notarized and signed by the Organization's executive director and board chair, if applicable;

(2) be postmarked not later than November 1;

(3) include the following information:

(A) the Organization's name and address;

(B) the names and titles of the Organization's executive director and board chair, if applicable;

(D) the number of residents at least 60 years of age who reside in that county, according to the most recent federal decennial census;

(E) the amount of the grant awarded by that county, as required by §1.954 of this title;

(F) the number of meals the Organization delivered to Elderly persons or persons with a Disability in that county during the preceding State Fiscal Year that were not Fully Funded;

(G) the Organization's most recent financial statement or audited financial report;

(H) a list of the Organization's board and officers;

(I) appropriate documentation demonstrating that the Organization:

(i) is a qualifying governmental agency or nonprofit private organization;

(ii) has been awarded a grant by the county for the provision of home-delivered meals to the homebound elderly and disabled in that county; and

(iii) has delivered the number of meals reported under subsection (a)(3)(F) of this section; and

(J) any other information the Department determines necessary.

(c) An Organization that applies for a grant for meals delivered in more than one county must submit a separate application for each county in which the Organization delivers meals.

§1.956.Nutritional Standards.

Each Home-delivered meal to which grant funds are applied shall be approved by a Dietary Consultant as meeting 1/3 of the recommended dietary allowance (RDA) for adults and the Dietary Guidelines for Americans, and shall adhere to federal meal pattern requirements. The approval must occur and be documented prior to the date the meal is served.

§1.957.Compliance with Laws and Regulations.

A Grantee must follow procedures and maintain facilities that comply with all applicable federal, state and local laws and regulations related to fire, health, sanitation, and safety, and obtain all necessary permits. All food preparation, handling, and service activities shall comply with applicable Texas Department of State Health Services rules.

§1.958.Service Requirements.

Each Grantee using grant funds received under this subchapter toward the preparation or delivery of a Home-delivered meal must provide such meal in accordance with the service requirements outlined in Title 40 Texas Administrative Code, §55.27, or other applicable local, state or federal regulations relating to the delivery, transportation, packaging of home-delivered meals, or the handling of undelivered meals.

§1.959.Eligibility of Persons Served.

Each Grantee using grant funds received under this subchapter toward the preparation or delivery of a Home-delivered meal must document that persons receiving a meal funded under this subchapter are Homebound Elderly persons or Homebound persons with a Disability as defined in §1.951 of this title (relating to Definitions).

§1.960.Permitted Use of Grant Funds.

The expenditure of grant funds by a Grantee shall be documented and used only to supplement and extend existing services related directly to delivery of meals to Homebound Elderly persons and Homebound persons with a Disability. Permissible expenditures include, but are not limited to, food costs and related preparation and packaging expenses, gasoline, and other operational costs, but shall not be used for the purchase of capital assets.

§1.961.Recordkeeping and Record Retention.

(a) Grantees shall maintain documentation as required by the Department to verify that individuals who receive meals paid for or delivered in part with grant funds received under this subchapter each qualify as a Homebound Elderly person or Homebound person with a Disability. Such documentation may be records already maintained by organizations that receive federal or state funding, or other documentation maintained in accordance with Program guidelines as may be established by the Department.

(b) Grantees shall submit reports and documentation as required by the Department to verify that expenditures made are directly related to supplementing and extending existing home-delivered meal services to Homebound Elderly persons and Homebound persons with a Disability, including documentation of the eligibility of persons receiving Home-delivered meals.

(c) Grantee shall retain all financial records, supporting documents, statistical records, and all other records relating to any grant funds received pursuant to this subchapter and expenditures of funds in conformity with federal and state regulations and generally accepted accounting principles.

(d) Records described in this section shall be maintained for the retention period in accordance with the records retention schedule established by the Department and approved by the Texas State Library and Archive Commission.

(e) All of the records described in subsections (a) and (b) of this section shall be maintained indefinitely if audit findings or other disputes or litigation have not been resolved. Grantees with multiple locations may maintain all records at a designated central location (i.e., administrative headquarters) for purposes of this section.

§1.962.Access to Grantee Records.

Grantee shall permit the Department and any other authorized governmental entity, through any authorized representatives, the access to and right to examine all records, books, papers, contracts, or other documents, including permits, related to grant funds received pursuant to this subchapter.

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 July 2, 2007.

TRD-200702797

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 12, 2007

For further information, please call: (512) 463-4075

Chapter 19. QUARANTINES

Subchapter S. ASIAN CYCAD SCALE QUARANTINE

4 TAC §§19.200 - 19.203

The Texas Department of Agriculture (the department) proposes new §§19.200 - 19.203, concerning a quarantine for the Asian cycad scale, Aulacaspsis yasumatsui Takegi. The quarantine is proposed to slow the spread of this pest in the State. The new sections prescribe specific restrictions on the movement of quarantined articles. In Texas, the Asian cycad scales were intercepted in some cycad palms (cycads) imported from Florida during the last two years. These infestations were eliminated either by treating or destroying the infested cycads, the most common hosts of the Asian cycad scale. However, the infestation suddenly increased in late 2006. In September 2006, the Texas Cooperative Extension reported widespread occurrence of the Asian cycad scale in Cameron County, particularly near Harlingen, Texas. Later, the Cooperative Extension reported the presence of this pest from eight additional Texas counties. A majority of cycads offered for sale in Texas are imported from Florida, whereas approximately 20 nurseries produce these cycads locally. In addition, approximately 15 businesses distribute these plants in Texas. An estimated 12 nurseries that produce cycad plants and eight businesses that distribute these plants are located in the Texas Asian cycad scale infested counties. The Asian cycad scales cause damage by sucking plant fluids. They cause necrosis of leaves and eventually plant death if left uncontrolled. Movement of infested cycads has been identified as the major pathway for the artificial spread of this pest. The department believes that by placing restrictions on the movement of quarantined articles from the infested counties of Texas and other states will delay the spread of this pest into free areas of Texas.

Section 19.200 defines the quarantined pest. Section 19.201 lists the Asian cycad scale-infested counties in Texas and other states. Section 19.202 describes the quarantined articles, and §19.203 prescribes requirements for movement of the quarantined articles from the quarantined area to a free area. The department believes that it is necessary to take this action to reduce spread of the Asian cycad scale into free areas of Texas.

Dr. Shashank Nilakhe, state entomologist, has determined that for the first five-year period the new sections are in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the new sections.

Dr. Nilakhe has also determined that for each of the first five years the new sections are in effect, the public benefit anticipated as a result of enforcing the new sections will be reduction in the spread of the Asian cycad scale due to manmade activities. There will be a treatment cost to small and/or micro businesses and individuals that either produce or move quarantined articles from the quarantined area to free area. In order to comply with the new sections, businesses and individuals that are covered by the quarantine will be required to treat quarantined articles by insecticidal treatments or other means prescribed by the department. The cost of treatment will depend on the volume of quarantined articles moved from infested counties to non-infested counties, the size of the plants moved and the method of treatment prescribed. Consequently, the specific cost to the impacted businesses cannot be determined at this time.

Comments on the proposal may be submitted to Dr. Shashank Nilakhe, State Entomologist, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The new sections are proposed under the Texas Agriculture Code (the Code), §71.002, which provides the department with the authority to quarantine an area if it determines that a dangerous insect pest or plant disease not widely distributed in this state exists within an area of the state; the Code, §71.003, which provides the department with the authority to declare an area pest-free and quarantine surrounding areas if it determines that an insect pest or plant disease of general distribution in this state does not exist in an area; and the Code, §71.007, which authorizes the department to adopt rules as necessary to protect agricultural and horticultural interests, including rules to provide for a specific treatment of quarantined articles.

The code affected by the proposal is the Texas Agriculture Code, Chapter 71.

§19.200.Quarantined Pest.

The quarantined pest is the Asian cycad scale, Aulacaspsis yasumatsui Takegi, in any living stage of development.

§19.201.Quarantined areas.

The quarantined areas are:

(1) the states of Florida and Hawaii and the Commonwealth of Puerto Rico;

(2) the Texas counties of Bexar, Cameron, Fort Bend, Harris, Hidalgo, Jefferson, Montgomery, Nueces and Waller; and

(3) any other area infested with the Asian cycad scale.

§19.202.Quarantined Articles.

(a) The quarantined pest is a quarantined article.

(b) Cycad plants belonging to genera Cycas, Dioon, Encephalartos, Macrozamia, Microcycas and Stangeria are quarantined articles.

§19.203.Restrictions.

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

(b) Exceptions. Quarantined articles from quarantined areas of this state or any state are allowed entry into or through the free areas of Texas if:

(1) treated as prescribed by the department; and

(2) accompanied by a phytosanitary certificate issued by an authorized inspector of the state of origin certifying that the article was treated as prescribed and is free of the quarantined pest upon entry into Texas; or

(3) accompanied by a phytosanitary certificate issued by an authorized representative of the department certifying that the article from quarantined areas within this state was treated as prescribed and is free of the quarantined pest.