PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 3. BOLL WEEVIL ERADICATION PROGRAM
SUBCHAPTER C. PROHIBITION OF PLANTING OF COTTON
The Texas Department of Agriculture (the department) adopts amendments to Chapter 3, Subchapter C, §3.51, concerning prohibition of planting of cotton, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4438). The amendments are adopted to make the definitions in Chapter 3, Subchapter C, consistent with those found in 4 TAC Chapter 20, relating to cotton pest control, which are being amended to implement changes made to Texas Agriculture Code, Chapter 74, by the enactment of House Bill 1580 by the 81st Texas Legislature, 2009. The amendments modify the definitions of "Commercial cotton" and "Noncommercial cotton".
No comments were received on the proposal.
The amendments to §3.51 are adopted under the Texas Agriculture Code, §74.120 which authorizes the department to adopt reasonable rules necessary to carry out the purposes of Chapter 74, Subchapter D, relating to the boll weevil eradication foundation program.
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 August 12, 2009.
TRD-200903533
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) adopts amendments to Chapter 20, Cotton Pest Control, Subchapter A, §20.1 and §20.3, concerning definitions used in Chapter 20; Subchapter C, §20.22, concerning cotton stalk destruction requirements; and new Subchapter D, §20.30 and §20.31, concerning regulation of volunteer and other noncommercial cotton. Sections 20.22, 20.30 and 20.31 are adopted with changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4446). Sections 20.1 and 20.3 are adopted without changes and will not be republished. The amendments and new sections are adopted to implement changes made to Texas Agriculture Code, Chapter 74, by the enactment of House Bill 1580 (HB 1580) by the 81st Texas Legislature, 2009, and to protect the state's and Texas cotton producers' investment in boll weevil eradication and accelerate eradication of the boll weevil in Texas.
The amendments to §20.1 add definitions for "commercial cotton", "commercial cotton field", "hostable commercial cotton fee", "hostable cotton (or hostable)", "hostable noncommercial cotton fee" and "noncommercial cotton", and clarify the definitions of "destroyed or destruction", and "non-hostable cotton". The amendment to §20.3 adds a reference to new Subchapter D, and failure to pay a required hostable cotton fee to the list of violations. The amendments to §20.22 change the stalk destruction deadlines for Zone 7, Area 1 and Zone 8, Area 2, provide new deadlines for requests for extension, as established by HB 1580, and clarify the end date of destruction. This section is adopted with changes to the proposal. Based on comments received and updated scientific data provided to the department, the stalk destruction deadlines in §20.22(a) for Zone 7, Area 1 and Zone 8, Area 2 have been changed from the proposed dates of November 10, to November 20, effective May 1, 2010. The current destruction date of November 30 will remain in effect for the 2009 crop year. Section 20.22(b) is also adopted with changes based on comments received to clarify the methods and timeframe for submitting extension requests to the department, and to clarify that the timelines are tied to the date submitted to the department, rather than the date received.
New §20.30 provides for the regulation of hostable volunteer and other noncommercial cotton in commercial cotton fields, including the establishment and collection of a hostable commercial cotton fee by the department for failure to destroy hostable cotton after notice, as authorized by HB 1580. This section is adopted with changes in the title of the section, and changes, based on comment received, that provide that the department may allow a cotton grower who has harvested and destroyed stalks, but has a field in which hostable volunteer or hostable cotton regrowth is found, a 7-day grace period, and the possibility of requesting a weather-based extension of that grace period before a hostable commercial cotton fee will be imposed. New §20.31 provides for the regulation of hostable volunteer and other noncommercial cotton in locations other than commercial cotton fields, including the establishment and collection of a hostable noncommercial cotton fee by the department for failure to destroy hostable cotton after notice, as authorized by HB 1580. This section is adopted with changes at subsection (c) that provide for a cotton grower or landowner to request an extension of the 14-day grace period if weather conditions prevent the destruction of cotton within the 14 days. Subsection (d) is adopted with changes, based on comment received, to establish a fee amount for hostable volunteer or other noncommercial cotton that is destroyed prior to the cotton stalk destruction deadine for the zone in which a field is located and hostable volunteer or other noncommercial cotton that is destroyed after the appropriate cotton stalk destruction deadline.
The department received many comments on the proposal from individual cotton producers, the South Texas Cotton and Grain Association (STCGA), the Cotton and Grain Producers of the Lower Rio Grande Valley (CGPLRGV), and the Blackland Cotton and Grain Association. Comments generally in support of the proposal were submitted by individual cotton producers. These comments noted that changes in the cotton stalk destruction program are good, that producers are pleased to see some of the proposed changes in cotton pest control for their zone, that the new fee matrix for out of compliance stalk destruction is overdue, and that better pesticides are needed in order to eliminate infestations of the boll weevil. Other general comments were submitted include one individual who objected to fining producers who have made every attempt to comply, but who are found non-compliant based on the individual judgment of an inspector. The department agrees that the subjectivity of an individual inspector should not be the determining factor in determination on a case, and that the department will work to ensure that any potential subjectivity by inspectors is eliminated by further strengthening the standard operating procedures and through continual training of inspectors. Other general comments were received from two individuals who stated a concern that the proposed changes could cause further reduction in cotton acres or discourage producers from adopting high-yielding new varieties, that generally require longer growing seasons; they concluded that such reductions in cotton acreage would mean less revenue for boll weevil eradication. The goal of the regulation is not to generate revenue or affect the ability of the producer to select a variety suited to their needs. Instead, the goal is to save eradication costs by reducing hostable noncommercial cotton and by enforcing a host-free period following the destruction of commercial cotton. The department believes the regulations do not add new economic burden to producers. The proposed fees reflect actual costs to the Texas Boll Weevil Eradication Foundation (TBWEF) of monitoring and treating fields for the boll weevil; further, the fees are comparable or in some cases less than administrative penalties that would apply under previous rules. The Cotton Producer Advisory Committee (CPAC) for a zone or the TBWEF can at any time recommend changes in the destruction deadline for an area or zone. One individual inquired as to whether, if the proposed rules are put into effect, a producer can plant cotton in wheat land and pay the fee proposed and harvest the cotton after the destruction deadline and whether a farmer can pick his early crop, pay the proposed fee and harvest the rest of his crop after the destruction deadline. Under the proposed rules, a producer may pay a hostable commercial cotton fee and harvest a crop after a stalk destruction deadline, however, the department does not recognize allowance for a second picking or second cropping. Cotton left after the destruction deadline is non-compliant and is subject to the assessment of a hostable commercial cotton fee. Two individuals, one of whom was a CPAC member and boll weevil eradication zone committee member, commented that they were not aware of the proposed changes until a few weeks before comment period expired. The department recognizes and regrets that not all stake holders learned of the proposed changes in regulations before publication of the proposed rules. However, this is why a 30 day comment period is available prior to the adoption of proposed rules. The passage of HB 1580, with an effective date of May 27, 2009, gave the department little time to prepare outreach material. However, during the comment period, the department made an extensive multi-pronged effort to contact as many stakeholders as possible through the website, press releases, and a series of 18 informational sessions.
One general comment was received in opposition to the assessing of a cotton destruction fee stating that most farmers will not intentionally leave cotton stalks in their fields longer than is necessary on commercial cotton crops. The department agrees that most cotton producers destroy their cotton as soon as is possible. However, experience shows that each year some producers do not meet the destruction deadline. The hostable commercial cotton fee will benefit cotton producers by reducing hostable cotton that exists outside of growing seasons or outside commercial cotton fields, and by providing funds for monitoring and treating so that such cotton does not imperil the eradication program, in which Texas has invested almost $1 billion to date. Finally, one comment was received stating that the department should register purchases of bulk seed or other by-products for animal feed and should inspect sites for noncommercial cotton. The comment concluded that such a program is needed to control the boll weevil problem. The department believes that this comment is beyond the scope of the present proposal, and may require specific statutory authority. The department will work with cotton ginners to disseminate educational information regarding this issue.
Numerous comments were received on §20.22(a), relating to the change in the cotton stalk destruction deadlines for Zone 7, Area 1, and Zone 8, Area 2. The comments were submitted by cotton producers and groups representing cotton producers. Two comments were received in favor of the proposed change stating that the proposed (November 10) destruction deadlines for Zone 7 Area 1 and Zone 8 Area 2, can be complied with in a normal growing season. Several comments were received from producers in opposition to the proposed November 10 destruction date. Once commenter requested that the department leave the stalk destruction date for Zone 7, Area 1, at November 30th. One commenter noted having seen cotton still in the field in February due to wet weather. The department understands that adverse weather may make meeting the established destruction date not possible and notes that individual and blanket extensions based on adverse weather continue to be an option, under the new regulations. Another commenter stated that the changed destruction deadline reflects total disregard of recommendations of the Zone 8 CPAC. The law requires that the department consult with both the TBWEF and the zone CPAC when considering changes to a cotton stalk destruction deadline; TBWEF recommended the proposed change and the Zone 8 CPAC did not provide a formal recommendation to the department. The current stage of eradication requires more strict requirements for boll weevil control, in order to protect the almost $1 billion investment made by producers to eliminate residual populations of the pest. As noted previously, based on a combination of new scientific data and comments from producers concerning local-area conventional production practices, the department is adopting November 20 (vs. the proposed date of November 10) as the destruction deadline for Zone 7 Area 1 and Zone 8, Area 2. The adopted date includes more than 50 days for harvest and destruction of a field. Furthermore, in order to avoid adversely impacting cotton planted under the established destruction deadline, the department has set the effective date for the November 20 destruction deadline for May 1, 2010.
Several comments were also received on §20.22(b), relating to extension requests, in particular, the deadline for submitting such requests to the department. One commenter noted that the zone CPAC should have authority to request blanket extension in the event of extraordinary rain or other catastrophic event. Under the established rule, blanket and individual extensions for weather are available before the destruction deadline. Two commenters noted that the deadline for extension requests should be based on date request is sent, not (as in the proposal) on the date the request is received by the department. The department agrees with this comment, and as noted previously, has adopted this change to §20.22(b)(6). Several comments were received in opposition to the 10-business day requirement for submission of an extension request. Comments stated that the requirement, particularly when coupled with self-interest and unpredictable weather, will trigger many unnecessary precautionary individual and blanket requests for a deadline extension and result in a paperwork logjam Also, it was commented that the 10-day criterion should not be applied to requests for an extension of the original length of an extension. One commenter stated his belief that the requirement for submission of extension request 10-business-days before destruction deadline is a ploy by TBWEF to extract more money from producers, who have until the final planting date to plant their crop. The department disagrees, as the requirement to submit an extension request 10 business days in an advance of the deadline is a statutory requirement in HB 1580. Based on comments received and the department's interpretation of the intent of the law, the department has modified the proposal to specify that only fields that are unharvested will be subject to a 10-day requirement. Because of comments received indicating that great numbers of producers would need to submit an extension request, the department has modified the proposal to §20.30 to provide that fields that have been destroyed prior to the destruction deadline are considered to have met the destruction requirements, although it is still the responsibility of the producer to maintain the field free of hostable cotton. If the department finds hostable regrowth or volunteer cotton in a destroyed field after the deadline, the department will give notice to the producer requiring the producer to render the plants nonhostable within 7 days (this is the same amount of time given under the current program). During the grace period, the hostable commercial cotton fee will not be assessed. If adverse weather conditions prevent a producer from destroying regrowth or volunteer in a destroyed field upon notice by the department, the producer may request an extension of the 7 day grace period. These requests may be made anytime within the grace period.
Several comments were received on new §20.30. Comments were received stating that the hostable commercial cotton fee should apply only to acreage affected rather than the whole field or farm and that there should be a prorated hostable fee schedule. Section 20.30, as proposed and adopted, provides that the fee is assessed on a per acre basis. Only those acres out of compliance are assessed the fee. In addition, the adopted regulation has a graduated increase in the hostable commercial cotton fee, which increases from $5/acre/week to $7.50/acre/week, beginning the sixth week after the destruction deadline. The requirement to increase the fee 150% is a statutory requirement included in HB 1580. Another comment noted that the hostable commercial cotton fee should not begin to accrue until the violation is identified. The department accepts this comment for regrowth and volunteer cotton in a field that was compliant by the destruction deadline, and has modified the adopted language in §20.30(a) accordingly. This is similar to the standard used under current regulations. Another comment was received noting that the preamble to the proposal mistakenly states the formula for calculation of hostable commercial cotton fee as "through the end of the fifth week", which should be changed to "after the end of the fifth week". The department agrees that the preamble incorrectly stated the term; however, the actual proposed rule text, as published, is correct.
Several comments were received on §20.31. One comment was received generally in favor of the regulation, stating that regulation of noncommercial cotton in fields of other crops appears very similar to that currently enforced except that the fee has been defined in greater detail. The change in the fee and the fee being specified was needed. Another comment was received regarding subsection (d), stating that after the cotton destruction deadline, the hostable noncommercial cotton fee should have no cap, because as currently written (with the capped at a level equal to the boll weevil eradication assessment), the regulation gives no incentive to destroy the cotton after the maximum fee has been reached. The department accepts this comment and has revised the proposed language accordingly. Section 20.31(d), as adopted, now provides that prior to the established cotton stalk destruction deadline for the applicable pest management zone, the total fee per acre shall not exceed the per acre assessment for boll weevil eradication that would be applicable if the location were a commercial cotton field. If hostable noncommercial cotton is present after the date of the destruction deadline or any approved extension of the destruction deadline, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week that shall be in addition to any fees accrued prior to the stalk destruction deadline. Another comment noted that noncommercial cotton can't be destroyed if you can't get into the field due to adverse weather conditions. The department agrees with the comment. The proposed rules specify that if the department finds hostable noncommercial cotton in a crop field or other location not a commercial cotton field, the department will give notice to the producer requiring the producer to render the plants nonhostable within 14 days. During the grace period, the hostable noncommercial cotton fee will not be assessed. To address this comment, the department has modified the rules to provide that if adverse weather conditions prevent a producer from destroying noncommercial cotton in a destroyed field upon notice by the department, the producer may request an extension of the 14 day grace period. These requests may be made anytime within the grace period. These requests for extension are limited to adverse weather that prevents destruction of the noncommercial cotton.
Another comment voiced a concern with the hostable noncommercial cotton fee calculation, which provides for charging for 50% of a field when hostable cotton is found in just a small area. The 50% requirement is a statutory requirement included in HB 1580. A comment was received stating that the effect of drought is not addressed by the proposed regulations, noting that volunteer cotton is made worse by drought. The department believes that the regulations took into account weather conditions by allowing a 14-day grace period to destroy cotton that is not under monitoring and/or treatment in the eradication program. The requirement to destroy volunteer cotton is not new. A comment was received stating that the department needs to have a chemical that allows producers to kill cotton in other crops without damaging those crops if the department is going to apply these rules. The department believes that chemical and nonchemical options currently exist to destroy cotton. In addition, the department has approved 2EE special registrations for herbicides to control cotton in other crops. A comment was received stating that department wants producers to control the weather and is trying to stop the central Texas farmer from raising cotton. The department recognizes that factors outside a producer's control influence the production of noncommercial cotton; regardless, the noncommercial cotton must be controlled or treated for boll weevils, in order to protect the state's and producers' investments in boll weevil eradication.
SUBCHAPTER A. GENERAL PROVISIONS
The amendments are adopted under the Texas Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks, other cotton parts and products of host plants for cotton pests, and amendments to Chapter 74, as established by the enactment of HB 1580 by the 81st Texas Legislature, 2009.
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 August 11, 2009.
TRD-200903499
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The amendments are adopted under Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; and the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks, other cotton parts and products of host plants for cotton pests; and the Code; and §74.0031 and §74.032 as added to Chapter 74 by the enactment of HB 1580, by the 81st Texas Legislature, 2009, and which authorizes the department to set a cotton stalk destruction deadline for each pest management zone with consideration given to the recommendations of the Texas Boll Weevil Eradication Foundation and the applicable pest management advisory committee and set deadlines for submission of requests for extension of a stalk destruction deadline.
§20.22.Stalk Destruction Requirements.
(a) Deadline and methods. From the destruction deadline until the end date for destruction requirements (see graphic for this subsection), all cotton plants in a Pest Management Zone shall be non-hostable. Enforcement of destruction requirements begins on the day immediately following the destruction deadline date. Additional requirements for stalk destruction are as follows:
(1) Zone 9--All cotton plants shall be shredded.
(2) Zone 10--All cotton plants shall be shredded; also, the field shall be:
(A) Plowed, with soil being tilled to a depth of six or more inches; or
(B) Flood irrigated, following shredding of the plants, with sufficient irrigation applied to wet all soil. When flood irrigation is elected:
(i) In advance of the irrigation date, the department shall be notified in writing of intent to flood irrigate (specifying the field's location, FSA Farm Number, FSA Tract Number, FSA Field Number, a contact person and a contact phone number).
(ii) A copy of irrigation records shall be presented for inspection during normal working hours, within 5 working days, if so requested in writing by the department.
Figure: 4 TAC §20.22(a)(2)(B)(ii)
(b) Deadline extensions.
(1) The department may, on written request by a farm owner and/or operator, grant an extension of the cotton destruction deadline in any pest management zone. Requests for extensions in any zone may be granted for the reasons listed in subparagraphs (A) - (E) of this paragraph:
(A) research conducted inside a sealed greenhouse or lab;
(B) weather factors;
(C) illness;
(D) mechanical failure; or
(E) other good cause.
(2) The department may grant a blanket extension of the destruction deadline covering an entire cotton stalk destruction zone or a portion of an entire zone in any one of the following circumstances:
(A) in response to a written request by the cotton producer advisory committee, in a given zone authorized and signed by a majority of the committee members;
(B) in response to a written request by the chairman of the cotton producer advisory committee, or his designee, on behalf of the committee; or
(C) in response to a significant number of individual written requests for individual extensions from cotton producers in a given zone as the result of an extreme weather event such as prolonged periods of heavy rain, prolonged periods of drought, a tropical storm, a hurricane, or other such extreme weather event.
(3) A blanket extension may be implemented at the department's own initiative if a zone or other area experiences a serious unforeseen condition that prevents the department from surveying fields for compliance or which clearly makes compliance by a substantial majority of producers impossible.
(4) Request forms may be obtained from any of the following locations within a cotton pest management zone:
(A) County Extension office;
(B) Farm Service Agency office; or
(C) Texas Department of Agriculture.
(5) Failure to complete the form entirely may result in denial of the request.
(6) Submission of extension requests:
(A) All requests for blanket or individual extensions must be hand-delivered to the department or submitted by mail or fax, and be postmarked or electronically date-stamped by the department:
(i) no later than 10 days prior to the cotton stalk destruction deadline, for unharvested fields; or
(ii) up to end of the date of the deadline, for fields containing hostable regrowth, hostable volunteer, and/or hostable harvested cotton.
(B) Late submission of an extension request may result in its denial.
(c) Enforcement suspensions.
(1) The department may temporarily suspend cotton stalk destruction deadline enforcement activities in a zone or portion thereof, due to conditions that temporarily prevent enforcement activities.
(2) During an enforcement suspension, for the zone or portion thereof under suspension, no new violations of the cotton stalk destruction deadline will be documented; compliance deadlines for previously recorded violations of the deadline will not advance; and penalty periods related to the deadline will not accrue.
(3) At the end of the enforcement suspension, all suspended activities and processes will resume, at the point where they had left off.
(d) Cotton in a zone must be in compliance with the respective stalk destruction requirements and may not be planted after the stalk destruction deadline until the earliest planting date listed in the table in subsection (a) of this section.
(e) At the end date of destruction requirements listed in the table in subsection (a) of this section, the requirement to destroy original growth, regrowth, or volunteer cotton from the previous crop year shall end for original growth, regrowth, or volunteer cotton that occurs in a commercial cotton field. Violations arising in a zone prior to the end date for destruction requirements will be pursued, but penalties shall cease to accrue on the end date for destruction requirements.
(f) Cotton covered by a noncommercial cotton permit issued by the department shall be exempt from the requirements of this section.
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 August 11, 2009.
TRD-200903500
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The new sections are adopted under Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; and the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks, other cotton parts and products of host plants for cotton pests; and the Texas Agriculture Code, §74.032, as added by HB 1580, which provides the department with the authority to establish and collect a hostable cotton fee on hostable volunteer or other noncommercial cotton which remains past the stalk destruction deadline set for the applicable pest management zone, and to adopt rules to implement §74.032; and §74.119, as amended by HB 1580, which provides the department with the authority to adopt rules providing for the regulation and control of volunteer and other noncommercial cotton in pest management zones, including the establishment of a volunteer cotton fee to be paid to the department on hostable or volunteer cotton which has not been destroyed after notice by the department.
§20.30.Hostable Cotton in Commercial Cotton Fields.
Hostable Commercial Cotton Fee: Hostable unharvested cotton, hostable harvested cotton, or hostable volunteer or other hostable noncommercial cotton, including regrowth, found in a commercial cotton field after the cotton destruction deadline or any extension of the destruction deadline, may be subject to a hostable commercial cotton fee.
(1) Upon discovery of hostable volunteer or other noncommercial cotton in a commercial cotton field, the department will give notice to the grower or landowner to destroy the hostable volunteer or hostable regrowth cotton within a 7-day grace period after the date notice is given. If weather conditions prevent destruction of the cotton within the 7-day grace period, the grower or landowner may, before the end of the 7-day grace period submit a request for an extension of the grace period.
(2) For fields containing planted stalks that remain undestroyed, the hostable commercial cotton fee: is calculated at:
(A) $5.00 per acre for each full or partial week through the end of the fifth week after the destruction deadline or any approved extension of the destruction deadline; and
(B) $7.50 per acre for each full or partial week beginning with the sixth week after the date of the destruction deadline or any approved extension of the destruction deadline.
(3) For fields that contain only hostable volunteer or hostable regrowth cotton, the hostable commercial cotton fee is calculated at:
(A) $5.00 per acre for each full or partial week through the end of the fifth week after the end of the 7-day grace period or an approved extended period provided for in paragraph (1) of this section; and
(B) $7.50 per acre for each full or partial week beginning with the sixth week after the end of the 7-day grace period or an approved extended period provided for in paragraph (1) of this section.
(4) A hostable commercial cotton fee must be received on or before the 45th day after the date the department gives notice to the cotton grower that the fee is due.
(5) Notice is given under this section on the date:
(A) the notice is personally delivered to the person owing the fee or to any agent, of the person owing the fee, who typically receives business correspondence on behalf of that person; or
(B) if mailed, three days after the date the notice is mailed to the person owing the fee or to any agent, of the person owing the fee, who typically receives business correspondence on behalf of that person.
(6) An administrative penalty for each day payment is delinquent may be assessed against a person who fails to pay the fee required by this section in a timely manner.
(7) In addition to administrative penalties, the department is also authorized to destroy, or contract for the destruction of, any hostable cotton for which the applicable fee has not been paid. If it becomes necessary for the department to contract with someone to destroy the hostable cotton, the cotton grower must reimburse the department for 150% of the actual costs required for destruction. If a cotton grower does not reimburse the department within 30 days after the date the department or contractor completes destruction or the date the department issues a bill requesting payment, whichever is later, the department may place a lien against the property on which the hostable cotton was located.
§20.31.Hostable Volunteer and Other Noncommercial Cotton in Locations Other Than Commercial Cotton Fields.
(a) Cotton grown under a noncommercial cotton permit issued by the department under §3.53 of this title (relating to Prohibition of Planting of Cotton) is exempt from the requirements of this section.
(b) Except as provided by subsection (a) of this section, volunteer and other noncommercial cotton shall be destroyed by the grower or landowner prior to becoming hostable, if the volunteer or other noncommercial cotton is:
(1) in a crop field or other location that is not a commercial cotton field; and
(2) in a boll weevil quarantined area, as established by §20.11 of this chapter in conjunction with §§20.12 - 20.14 of this chapter (relating to Quarantine Requirements).
(c) Upon discovery of hostable volunteer or other hostable noncommercial cotton described by subsection (a) of this section, the department will give notice to the grower or landowner, or both the grower and the landowner, to destroy the hostable volunteer or other noncommercial cotton within 14 days after the date notice is given. If weather conditions prevent destruction of the cotton within the 14-day grace period, the grower or landowner may, before the end of the 14-day grace period submit a request for an extension of the grace period.
(1) Crop fields. If hostable volunteer or other hostable noncommercial cotton located in a crop field, that is not a commercial cotton field, is not destroyed on or before the 14th day after notice is given, the department or a person designated by the department may monitor and treat the cotton for boll weevil. The monitoring and treatments will continue until the cotton becomes non-hostable.
(2) Other locations. If hostable volunteer or other hostable noncommercial cotton not located in a crop field or commercial cotton field is not destroyed on or before the 14th day after notice is given, the department may declare the location a public nuisance, destroy the cotton, and charge the landowner 150 percent of the actual destruction costs.
(d) Hostable Noncommercial Cotton Fee. If hostable volunteer or other hostable noncommercial cotton in a crop field, or other location that is not a commercial cotton field, is not destroyed on or before the 14th day after notice is given or the expiration of an approved extended period, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week until the cotton is destroyed.
(1) If hostable volunteer or other hostable noncommercial cotton is present in less than fifty percent of the crop field or other location that is not a commercial cotton field, then the fee will be based on one-half of the total acreage of the crop field or other location that is not a commercial cotton field.
(2) Prior to the established destruction deadline listed in §20.22 of this title (relating to Stalk Destruction Requirements) for the applicable Pest Management Zone, the total fee per acre shall not exceed the per acre assessment for boll weevil eradication that would be applicable if the location were a commercial cotton field. If hostable noncommercial cotton is present after the date of the destruction deadline or any approved extension of the destruction deadline, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week that shall be in addition to any fees accrued prior to the destruction deadline.
(3) Fees will cease to accrue on the earlier of:
(A) the date a department inspector finds all hostable volunteer or other hostable noncommercial cotton has been destroyed; or
(B) the date the grower or landowner notifies the department that all hostable volunteer or other hostable noncommercial cotton has been destroyed, provided that all hostable volunteer or other hostable noncommercial cotton is found to be destroyed during the first department inspection of the crop field or other location that is not a cotton field after the grower or landowner notifies the department.
(e) Notice is given under this section on the date:
(1) the notice is personally delivered to the grower or landowner or to any agent, of the grower or landowner, who typically receives business correspondence on behalf of the grower or landowner; or
(2) if mailed, three days after the date the notice is mailed to the grower or landowner or to any agent, of the grower or landowner, who typically receives business correspondence on behalf of the grower or landowner.
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 August 11, 2009.
TRD-200903501
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The Board of Directors (Board) of the Texas Agricultural Finance Authority (TAFA) of the Texas Department of Agriculture (TDA) adopts the repeal of Chapter 28, Subchapter A, §§28.1 - 28.15, Subchapter B, §§28.21 - 28.36, Subchapter C, §§28.41 - 28.52, Subchapter D, §§28.61 - 28.72, and Subchapter E, §§28.81 - 28.88 and new Chapter 28, Subchapter A, §§28.1 - 28.6, Subchapter B, §§28.10 - 28.19, Subchapter C, §§28.20 - 28.36, Subchapter D, §§28.40 - 28.48, Subchapter E, §§28.50 - 28.55 and Subchapter F, §§28.60 - 28.63, all relating to programs administered by TAFA, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4450). The repeal of Chapter 28 and new Chapter 28 are adopted to implement new programs authorized with the enactment of Senate Bill 1016 (SB 1016), 81st Legislature, 2009. TDA also believes that the programs will provide an economic stimulus in the business of agriculture in Texas. As part of its review by the Sunset Advisory Commission, TDA, working with the TAFA Board, developed a strategic plan for the TAFA programs, which was adopted by the Sunset Advisory Commission and put into law in SB 1016. SB 1016 amends Chapters 44 and 58 of the Texas Agriculture Code to provide for a restructuring of programs administered by TAFA to include the modification of the interest rate reduction program, formerly the linked deposit program, establishment of a new loan guarantee program, a new young farmer interest rate reduction program and a new young farmer grant program and the elimination of the young farmer loan guarantee program. Rules for all of the new programs are now included in Chapter 28, as are existing rules relating to the collection of assessments by county tax-assessor collectors for deposit into the Texas Agricultural Fund. The Board is also adopting the repeal of Chapter 30, concerning the Young Farmer Loan Guarantee Program, in a separate submission, which appears in this issue of the Texas Register.
The repeal of Chapter 28 includes the repeal of the program rules for the Farm and Ranch Finance Program currently found in Chapter 28, Subchapter B, and the Rural Development Finance Program, currently found in Chapter 28, Subchapter C. These rules are repealed because those programs are no longer utilized by the Board and were eliminated as part of the restructuring of the TAFA programs. However, because there are pending credits under the Rural Development Finance Program, those rules will still govern transactions processed under those rules.
New Subchapter A consists of §§28.1 - 28.6, and provides the general framework of the financial aid programs administered by TAFA including authority for Subchapter A, definitions, provisions for the examination of records and communication with the Authority, and a severability rule. New Subchapter B consists of §§28.10 - 28.19 and provides the rules that govern the Interest Rate Reduction Program, which provides loan guarantees to foster the creation and expansion of enterprises based on agriculture in this state. The new sections include the authority, scope and purpose of Subchapter B, definitions, application and review procedures, acceptance and rejection procedures, use of loan proceeds, and program limitations. New Subchapter C consists of §§28.20 - 28.36 and provides the rules that govern the Agricultural Loan Guarantee Program, which provides loan guarantees to assist in the establishment or enhancement of a farming or ranching operation or an agricultural-related business. The new sections include the authority, scope and purpose of Subchapter C, definitions, application and approval procedures and requirements for applicants and lenders, general terms and conditions of the Authority's financial commitment, provisions for loan and loan guarantee administration, and interest rebate requirements and procedures. New Subchapter D consists of §§28.40 - 28.48 and provides the rules that govern the Young Farmer Interest Rate Reduction Program, which provides loan guarantees to encourage private commercial loans and provide an economic benefit to young farmers for the purpose of creating or expanding an agricultural business in this state. The new sections include the authority and purpose of Subchapter D, definitions, application and review procedures for applicants and lenders, acceptance and rejection procedures, use of loan proceeds, and program limitations. New Subchapter E consists of §§28.50 - 28.55 and provides the rules that govern the Young Farmer Grant Program, which provides financial assistance in the form of matching grant funds to young farmers for the purpose of creating or expanding an agricultural business in this state. The new sections include the authority and purpose of Subchapter E, definitions, eligibility requirements, and provisions for use of the grant award, and program administration. New Subchapter F consists of §§20.60 - 28.63 and provides the rules that govern the administration of the collection of assessments by county tax assessor-collectors as provided for in §502.174 of the Texas Transportation Code. The new sections include the purpose and application of Subchapter F, definitions, collection procedures, and procedures for refund of the assessment.
No comments were received on the proposal.
SUBCHAPTER A. FINANCIAL ASSISTANCE PROGRAM RULES
The repeal of Chapter 28, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903510
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 28, Subchapter B, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and the Code, §59.022, which provides the Board with the authority to adopt rules to carry out the Farm and Ranch Finance Program.
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 August 12, 2009.
TRD-200903511
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 28, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; and the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the Board.
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 August 12, 2009.
TRD-200903512
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 28, Subchapter D, is adopted pursuant to Texas Agriculture Code (the Code), §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program.
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 August 12, 2009.
TRD-200903513
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 28, Subchapter E, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; and the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board.
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 August 12, 2009.
TRD-200903514
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903515
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter B, is adopted pursuant to Texas Agriculture Code (the Code), §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program; the Code, §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903516
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.052 as amended by SB 1016, which provides that the Board shall establish by rule tiered loan guarantee limits; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903517
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter D, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.072, as added by SB 1016, which authorizes the TAFA Board to establish rules for a young farmer interest rate reduction program and promulgate rules for the loan portion of that program; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903518
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter E, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.091, as added by SB 1016, which provides that the Board shall adopt rules to administer the young farmer grant program and selection criteria; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903519
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
New Chapter 28, Subchapter F, is adopted pursuant to Transportation Code, §502.174, as amended by SB 1016, which provides for the collection of an assessment for deposit in the Texas Agricultural Fund, and provides that TAFA shall prescribe procedures for a refund of the assessment.
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 August 12, 2009.
TRD-200903520
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The Board of Directors (Board) of the Texas Agricultural Finance Authority (TAFA) of the Texas Department of Agriculture (TDA) adopts the repeal of Chapter 30, Subchapters A, §§30.1 - 30.15; Subchapter B, §§30.50 - 30.54; and Subchapter C, §§30.60 - 30.63, concerning the Texas Agricultural Finance Authority: Young Farmer Loan Guarantee Program, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4463). The repeal is adopted to eliminate unnecessary sections in this chapter to conform to new requirements established under Senate Bill (SB) 1016, 81st Legislative Session, 2009, which restructured the programs and funding for those programs administered by the Board and TDA, eliminated the Young Farmer Loan Guarantee Program and established a new loan guarantee program, young farmer interest rate reduction program and a young farmer grant program. The repeal eliminates all subchapters in Chapter 30. Subchapter B, relating to Rules For Deposition And Refund of Assessment Fees and Subchapter C, relating to Interest Rate Reduction Program Rules, have been revised and moved to new Chapter 28, which was filed in a separate submission, and the adoption of which is published in this issue of the Texas Register.
No comments were received on the proposal.
SUBCHAPTER A. GENERAL PROCEDURES
The repeal of Chapter 30, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code); the Code, §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903521
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 30, Subchapter B, is adopted pursuant to Transportation Code, §502.174, as amended by SB 1016, which provides for the collection of an assessment for deposit in the Texas Agricultural Fund, and provides that TAFA shall prescribe procedures for a refund of the assessment.
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 August 12, 2009.
TRD-200903522
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075
The repeal of Chapter 30, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code); the Code, §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program; the Code, §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.
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 August 12, 2009.
TRD-200903523
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 463-4075