Proposed Rules Title 4

The Texas Department of Agriculture (the department) proposes the repeal of §1.207 and amendments to §1.209, concerning the Wine Marketing Assistance Program Advisory Committee and the Wine Industry Development and Marketing Advisory Committee. The repeal and amendments are proposed to conform the sections with changes made by Senate Bill 1016 (SB1016), 81st Legislature, 2009, which eliminates the existing Wine Marketing Assistance Program Advisory Committee and the existing Wine Industry Development Advisory Committee and creates a new Wine Industry Development and Marketing Advisory Committee. The repeal of §1.207 eliminates the Wine Marketing Assistance Program Advisory Committee. The amendments to §1.209 provide the name, composition, and terms of members of the new Wine Industry Development and Marketing Advisory Committee.

Brian Murray, Assistant Commissioner for External Relations, has determined that for the first five years the proposed repeal and amended section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amended section.

Mr. Murray also has determined that for each year of the first five years the repeal and amended section are in effect the public benefit anticipated as a result of enforcing the proposed amended section will be to provide interested members of the public with accurate information regarding the department's wine advisory committees. For the first five-year period the repeal and proposed amended section are in effect, there will be no economic cost for micro-businesses, small businesses or individuals who are required to comply with the section, as proposed.

Comments on the repeal and proposed amendments may be submitted to Brian Murray, Assistant Commissioner for External Relations, 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.

4 TAC §1.207

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The repeal of §1.207 is proposed under the Texas Government Code, §2110.005, which requires that an agency that establishes an advisory committee adopt rules to state the purpose and tasks of the committee and manner in which the committee shall report to the agency; §2110.008, which authorizes an agency establishing an advisory committee to designate the duration of a committee; the Texas Agriculture Code (the Code), §50B.002, as amended by SB 1016, which authorizes the Commissioner of Agriculture to appoint a Wine Industry Development and Marketing Advisory Committee; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The Code affected by the proposal is the Texas Government Code, Chapter 2110 and the Texas Agriculture Code, Chapter 50B.

§1.207.Wine Marketing Assistance Program Advisory Committee.

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 June 22, 2009.

TRD-200902568

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

4 TAC §1.209

The amendments to §1.209 are proposed under the Texas Government Code, §2110.005, which requires that an agency that establishes an advisory committee adopt rules to state the purpose and tasks of the committee and manner in which the committee shall report to the agency; §2110.008, which authorizes an agency establishing an advisory committee to designate the duration of a committee; the Texas Agriculture Code (the Code), §50B.002, as amended by SB 1016, which authorizes the Commissioner of Agriculture to appoint a Wine Industry Development and Marketing Advisory Committee; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The Code affected by the proposal is the Texas Government Code, Chapter 2110 and the Texas Agriculture Code, Chapter 50B.

§1.209.Wine Industry Development and Marketing Advisory Committee.

(a) Purpose. The Wine Industry Development andMarketing Advisory Committee (Committee) is appointed by the Commissioner of Agriculture (Commissioner) pursuant to the Texas Agriculture Code, §50B.002 and is established within the Texas Department of Agriculture (the department) to assist the Commissioner in developing a long-term vision and marketable identity for the wine industry in the state, and assist the Commissioner in establishing and implementing the Texas Wine Marketing Assistance Program under Texas Alcoholic Beverage Code §110.002.

(b) Composition; Duties. The Committee is composed of representatives of the Texas wine industry including grape growers, wineries, wholesalers, package stores, retailers, researchers, [~~winery owners, wine grape growers, persons representing~~ ] consumers [~~of wine~~], the department, and the Texas Alcoholic Beverage Commission [ ~~ex-officio members representing institutions of higher education that have established programs in enology and viticulture, and the department~~]. The Committee shall assist the Commissioner in developing a vision and identity for the Texas wine industry by studying future industry development, funding, research, educational programming, risk management and marketing issues related to wine. In addition, the Committee may advise the Commissioner on the implementation of the Wine Industry Development Fund grant program and the Wine Marketing Assistance Program.

(c) Duration. The Committee members shall serve a term of two years and the committee shall remain in existence under the same sunset review date as the department [ ~~as long as deemed necessary by the Commissioner~~].

(d) (No change.)

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 June 22, 2009.

TRD-200902569

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 3. BOLL WEEVIL ERADICATION PROGRAM

Subchapter C. PROHIBITION OF PLANTING OF COTTON

4 TAC §3.51

The Texas Department of Agriculture (the department) proposes amendments to Chapter 3, Subchapter C, §3.51, concerning prohibition of planting of cotton. The amendments are proposed to make the definitions in 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 (HB 1580) by the 81st Texas Legislature, 2009. The amendments modify the definitions of "Commercial cotton" and "Noncommercial cotton".

David Kostroun, assistant commissioner for regulatory programs, has determined that for the first five years the amended section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments.

Mr. Kostroun also has determined that for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of administering and enforcing the amended section will be having updated and consistent rules relating to the department's cotton stalk destruction program. There will be no economic cost for micro-businesses, small businesses or individuals who are required to comply with the amended section, as proposed.

Comments on the proposal may be submitted to David Kostroun, Assistant Commissioner for Regulatory Programs, 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 amendment to §3.51 is proposed 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.

The Texas Agriculture Code, Chapter 74, is affected by the proposal.

§3.51.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) Commercial cotton--Cotton grown for sale or barter. [~~Cotton grown for the purpose of processing and sale for economic profit.~~]

(3) - (5) (No change.)

(6) Noncommercial cotton--Any cotton that is not commercial cotton. [ ~~Cotton grown for other than processing or sale for economic profit, including cotton grown for ornamental or research purposes.~~]

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 June 22, 2009.

TRD-200902557

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 13. GRAIN WAREHOUSE

4 TAC §13.7

The Texas Department of Agriculture (the department) proposes amendments to §13.7, concerning grain warehouse program fees. The amendments are proposed to ensure cost recovery in the area of grain warehouse inspections, as required by the 2010-2011 Appropriations Act, Senate Bill 1, Article VI, Page VI-8, Rider 20 (Rider 20). Rider 20 provides the authority for the department to add a full-time grain warehouse audit specialist to its staff, contingent upon raising the cost of fees in an amount sufficient to cover the cost of the new specialist. The proposed amendments to §13.7 increase fees for an annual inspection and requested inspections from $12.00 to $14.40 per 10,000 bushels or a fraction of 10,000 bushels of the licensed storage capacity, or $100.00, whichever is greater.

Rick Garza, Coordinator for Commodity Programs, has determined that for the first five years the amended section is in effect, there will be fiscal implications for state government due to the increase in inspection fees collected. There will be an approximate increase in state revenue of $60,000 per year, as a result of enforcing or administering the amended section. There will be no anticipated cost to local government as a result of enforcing or administering the amended section.

Mr. Garza has also determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing or administering the amended section will be that costs of implementing the grain warehouse program will be recovered, allowing for the addition of needed staff to better protect producers and carry out the department's duties under the grain warehouse law and regulations. The anticipated economic cost to individuals, micro businesses and small businesses affected by the proposed amended sections will be an increase in the inspection fee by $2.40 for each 10,000 bushels or a fraction of 10,000 bushels of the licensed storage capacity.

Comments on the proposal may be submitted to Rick Garza, Coordinator for Grain Warehouse Program, 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 amendment is proposed under the Texas Agriculture Code (the Code), §14.015, which provides the department with the authority to adopt rules necessary for the administration of requirements and procedures for the operation of a grain warehouse; the Code §14.023, which provides the department with the authority to provide by rule for an annual license fee for a grain warehouse license; Senate Bill 1, Appropriations Act, 81st Legislature, which requires the department to raise the cost of fees in an amount sufficient to cover the cost of new staff to implement the grain warehouse program; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The Texas Agriculture Code, Chapter 14 is affected by this proposal.

§13.7.Fees.

(a) - (c) (No change.)

(d) Inspection fees. The fee for an annual inspection is $14.40 [~~$12.00~~] for each 10,000 bushels or a fraction of 10,000 bushels of the licensed storage capacity, or $100, whichever is greater.

(e) Requested inspections.

(1) The fee for an inspection to increase or decrease licensed storage capacity including temporary storage is $14.40 [~~$12.00~~ ] for each 10,000 bushels or a fraction of 10,000 bushels of the increase or decrease in storage capacity, or $100.00, whichever is greater.

(2) The fee for a partial inspection is $14.40 [ ~~$12.00~~] for each 10,000 bushels or a fraction of 10,000 bushels of the partial facility that is being inspected, or $100.00, whichever is greater.

(3) (No change.)

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 June 19, 2009.

TRD-200902506

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 14. PERISHABLE COMMODITIES HANDLING AND MARKETING PROGRAM

The Texas Department of Agriculture (the department) proposes amendments to §§14.1 - 14.4, 14.10, 14.13, 14.14, and 14.21, related to the Perishable Commodities Handling and Marketing Program. The amendments to §§14.1, 14.2 and 14.4 are made to clarify the definition of "citrus fruit", to clarify requirements for showing a proof of ownership, and to formalize current practice in initiating proceedings to cancel a license for failure to reimburse the Produce Recovery Fund (Fund). The amendments to §§14.3, 14.10, 14.13 and 14.14 are proposed due to the passage of Senate Bill 1016 (SB 1016) during the 81st Legislative Session, which amended Texas Agriculture Code, Chapters 101 and 103, the statutory authority for the Handling and Marketing of Perishable Commodities Program, to eliminate the cash dealer license category, authorize the filing of claims against persons who are required to be licensed, increase the time for filing of claims to two years after the date of the violation, and change the amounts which may be paid from the Fund and method of reimbursement to the Fund.

The proposed amendments to §14.1 eliminate the definition for cash dealer and clarify the definition for citrus by specifying associated genera and including lemons, limes, and tangerines. Proposed amendments to §14.2 eliminate the requirements for citrus proof of ownership for a producer and their employees when citrus fruit is being hauled from the farm or grove to market or the place of first processing. Proposed amendments to §14.3 delete a fee for a cash dealer license since a cash dealer license will no longer be required. Proposed amendments to §14.4 specify the timing in which the department may initiate proceedings to cancel a license for a person who fails to reimburse and or fails to agree in writing to reimburse the Produce Recovery Fund. Proposed amendments to §14.10 amend eligibility requirements for filing a claim against the Produce Recovery Fund by allowing claims to be filed against a person required to be licensed (in addition to those who are licensed) and establishing a two year period of eligibility, from the date a payment was due, for filing a claim. Proposed amendments to §14.13 establish the amount of a claim eligible for payment from the fund. The eligible amount for claims are proposed for violations occurring prior to September 1, 2009 as well as those claims filed for violations on or after September 1, 2009. Proposed amendments to §14.14 update the requirements for reimbursement to the Produce Recovery Fund by a licensee or a person required to be licensed. Proposed changes to §14.21 clarify that the department may collect fees from a person required to be licensed.

Rick Garza, Coordinator for Commodity Programs, has determined that, for the first five-year period the proposed amendments are in effect, there will be a fiscal impact for state government of an estimated $18,360 annually in state revenue as a result of eliminating the cash dealer licensing fees. Some of this amount will be recovered by the elimination of the cost for processing cash dealer licenses and cost of enforcement of the cash dealer provisions of the current law. There will be no fiscal implications for local government. The fiscal implications for state government as a result of allowing claims to the Produce Recovery Fund by a person required to be licensed cannot be estimated at this time since the department does not have historical data on how many potential claims may have existed against an unlicensed person or person required to be licensed.

Mr. Garza also has determined that for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of the administration and enforcement of the amendments will be the efficient use of department resources and perishable commodity regulations that provide greater protection and assistance to producers that do not receive payment for produce sold to a licensee or persons required to be licensed. There will be no adverse fiscal impact on individuals, microbusinesses, or small businesses required to comply with the proposed changes, except that businesses subject to the cash dealer license under existing law and regulations will no longer be required to purchase a $30 cash dealer license.

Written comments on the proposal may be submitted to Rick Garza, Coordinator for Commodity Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed changes in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §§14.1 - 14.4

The amendments to §§14.1, 14.2, and 14.4 are proposed under the Texas Agriculture Code (the Code), §12.016, which provides the department with the authority to adopt rules to administer its duties under the Code; the Code, §101.006, which provides that the department shall charge a registration fee for a cash dealer as provided by department rule, as repealed by SB 1016, the Code, §103.012, which provides the department with the authority to adopt rules related to payment of claims from the Produce Recovery Fund; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Texas Agriculture Code, Chapters 101 and 103.

§14.1.Definitions.

In addition to the definitions set out in Texas Agriculture Code, Chapters 101, and 103 and Chapter 1, Subchapter A of this title (relating to the General Rules of Practice), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) (No change.)

~~[(2) Cash Dealer--A person who buys Texas grown perishable commodities in United States currency before or at the time of delivery or taking possession.]~~

(2) [~~(3)~~] Chairman--The chairman of the Produce Recovery Fund Board.

(3) [~~(4)~~] Citrus Fruit--Any fruit belonging to the genus Citrus, Poncitrus, Microcitrus, Eremocitrus or Fortunella, including, grapefruit, [ ~~Grapefruit and~~] oranges, lemons, limes, and tangerines.

(4) [~~(5)~~] Claim--A sworn complaint accompanied by the prescribed fee alleging a loss or damages occurred as a result of a violation of the terms or conditions of a contract involving the sale of perishable commodities grown in Texas.

(5) [~~(6)~~] Licensee--A person who holds a license issued under the Texas Agriculture Code, Chapter 101.

(6) [~~(7)~~] Open Meetings Act--Texas Open Meetings Act, Texas Government Code, Chapter 551.

(7) [~~(8)~~] Perishable Commodity--Fresh produce grown in Texas and generally considered a perishable vegetable or fruit.

§14.2.Citrus Proof of Ownership.

A licensee or a packer, processor, [or] warehouseman or transporter may not receive or handle citrus fruit without requiring the person from whom the citrus fruit is purchased or received to furnish proof of ownership on a form approved by the department ; except for citrus fruit being transported from the farm or grove to market or the place of first processing by the producer of the citrus fruit operating the producer's vehicle or by an employee of the producer operating a vehicle owned by the producer.

§14.3.Fees.

(a) License/registration/identification card fees.

(1) (No change.)

~~[(2) The registration fee for a cash dealer is $30.00.]~~

(2) [~~(3)~~] The fee for each identification card is $10.00.

(b) Produce Recovery Fund fee. In addition to a license fee, an annual fee of $250 shall be paid at the time of making the license application. [ ~~This fee does not apply to cash dealers.~~]

§14.4.Cancellation of License.

If an award and payment is made from the Fund and the licensee , or person required to be licensed, fails to reimburse and/or fails to agree in writing to reimburse the Fund and/or the complaining party to the case in accordance with the provisions of this chapter, the department shall initiate proceedings, after 90 days of failure to reimburse and/or failure to agree in writing to reimburse the Produce Recovery Fund, to cancel the licensee's license in accordance with the Texas Agriculture Code, §103.009. Such proceedings shall be conducted in accordance with the Texas Agriculture Code, §12.032, the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's rules of procedure.

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 June 22, 2009.

TRD-200902543

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

SUBCHAPTER B. PRODUCE RECOVERY FUND CLAIMS

4 TAC §§14.10, 14.13, 14.14

The amendments to §§14.10, 14.13, and 14.14 are proposed under the Texas Agriculture Code (the Code), §12.016, which provides the department with the authority to adopt rules to administer its duties under the Code; the Code, §103.012, which provides the department with the authority to adopt rules related to payment of claims from the Produce Recovery Fund; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Texas Agriculture Code, Chapters 101 and 103.

§14.10.Claims against the Fund.

(a) What claims can be filed. Only claims against a licensee or a person required to be licensed for loss or damages due to a violation of the terms or conditions of a contract for the sale of perishable commodities grown in Texas may be filed. The following claims may not be accepted:

(1) Claims [~~against a cash dealer, or a company not licensed under Chapter 101 and claims~~ ] for perishable commodities grown out-of-state.

(2) (No change.)

(b) Who may file. A person who suffers a loss or damages due to the violation of the terms or conditions of a contract by a licensee or a person required to be licensed may file a claim against the Fund.

(d) Statute of Limitations. A claim shall be barred if it is filed later than one year from the date the violation of the terms or conditions of a contract occurred. This limitation applies to claims that are based on violations that occurred prior to September 1, 2009. Claims based on violations that occurred on or after September 1, 2009 shall be barred if it is filed later than two years from the date the payment was due. [~~However, this limitation does not apply to claims that are based on violations that occurred prior to September 1, 1995.~~]

(e) (No change.)

§14.13.Payment of Claims from the Fund.

(a) The following payments of claims shall apply for a claim based on a violation occurring prior to September 1, 2009.

(1) [~~(a)~~] Claims of $2000 or less may be paid in full.

(2) [~~(b)~~] Claims of more than $2000 may be paid in the following manner:

(A) [~~(1)~~] If the claim was filed on or after September 1, 1999 but prior to September 1, 2009, the first $2000 plus no more than 70% of the amount in excess of $2000, may be paid.

(B) [~~(2)~~] If the claim was filed prior to September 1, 1999, the first $1000 plus no more than 60% of the amount in excess of $1000, may be paid.

(3) [~~(c)~~] Claims arising from Same Contract. Total payment for claims arising from the same contract shall not exceed $35,000.

(4) [~~(d)~~] Claims Against a Single Licensee. Total payment for claims against a single licensee shall not exceed $85,000 in any one calendar year. Claims shall be paid in the order that a final determination is made by the department or the Board. In cases when a claim cannot be paid in full due to the restrictions of this paragraph, the claimant shall be given the option of accepting immediate payment of a lesser amount or accepting full payment from the Fund during the next calendar year.

(b) The following payments of claims shall apply for a claim based on a violation occurring on or after September 1, 2009.

(1) Claims of $50,000 or less may be paid in full.

(2) Claims Arising from Same Contract. Total payment for claims arising from the same contract shall not exceed $50,000.

(3) Claims Against a Single Licensee or a person required to be licensed. Total payment for claims against a single licensee or a person required to be licensed shall not exceed $85,000 in any one calendar year.

(4) Claims against a person who is not licensed. Payment for claims against a person who is not licensed at the time the claim was filed shall not exceed 80% of the total claim.

(5) Claims shall be paid in accordance with the order that a final determination is made by the department or the Board. In cases when a claim cannot be paid in full due to the restrictions of this subsection, the claimant shall be given the option of accepting immediate payment of a lesser amount or accepting full payment from the Fund during the next calendar year.

§14.14.Reimbursement to the Fund.

(a) If the department pays a claim against a licensee , or a person required to be licensed, from the Fund:

(1) Upon issuance of a final determination from the department or the Board, the licensee shall reimburse the total amount paid by the Fund or agree in writing to reimburse the Fund the total amount paid by the Fund. If a person is not licensed on the date the transaction forming the basis of the claim occurred but is required to be licensed, the person shall pay the Fund one and one-half times the amount of the claim paid by the Fund, upon issuance of a final determination from the department or the Board. Payment to the Fund is due in full within 30 days of the date of the final agency determination. If the licensee, or a person required to be licensed, cannot pay the full amount to the Fund at that time, the department may allow the licensee, or a person required to be licensed, to pay the amount owed to the Fund on an amortization schedule set out in paragraph (3) of this subsection plus an annual interest rate of 8.0%.

(2) After fully reimbursing the Fund for payments made to the claimant, the licensee, or a person required to be licensed, shall immediately pay or agree to pay the claimant any remaining amount due that party (balance not received from the Fund). If the licensee or, or a person required to be licensed, cannot pay the full amount to the claimant at that time, the department may allow the licensee, or a person required to be licensed, to pay the amount owed to the claimant on an amortization schedule as set out in paragraph (3) of this subsection plus an annual interest rate of 8.0%, after the Fund is fully reimbursed.

(3) (No change.)

(b) (No change.)

(c) If a licensee, or a person required to be licensed, owes money to the Fund at the time the licensee, or a person required to be licensed, makes a claim against the Fund, the department shall offset the amount owed to the Fund from the amount determined to be payable from the Fund.

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 June 22, 2009.

TRD-200902544

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

SUBCHAPTER C. PRODUCE RECOVERY FUND BOARD

4 TAC §14.21

The amendment to §14.21 is proposed under the Texas Agriculture Code (the Code), §12.016, which provides the department with the authority to adopt rules to administer its duties under the Code; the Code, §103.012, which provides the department with the authority to adopt rules related to payment of claims from the Produce Recovery Fund; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Texas Agriculture Code, Chapters 101 and 103.

§14.21.Duties of the Board and the Department.

(a) (No change.)

(b) The department shall:

(1) administer the Fund, including the collection of fees from licensees, or a person required to be licensed, which are to be deposited into the Fund in accordance with the Texas Agriculture Code, Chapter 103;

(2) - (7) (No change.)

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 June 22, 2009.

TRD-200902545

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 16. AQUACULTURE

4 TAC §16.4

The Texas Department of Agriculture (the department) proposes to repeal §16.4, concerning the Texas shrimp marketing assistance program surcharge. The repeal is proposed to implement changes made to Texas Agriculture Code, Chapter 47 by House Bill 4593 (HB 4593), 81st Legislative Session, 2009, which eliminated the shrimp marketing assistance program surcharge for shrimp raised in aquaculture facilities, and provides that the shrimp marketing assistance program apply only to wild-caught shrimp commercially harvested from coastal waters by a shrimp boat licensed by the Texas Parks and Wildlife Department.

Gene Richards, assistant commissioner for marketing programs, has determined that, for the first five-year period the repeal is in effect, there will be fiscal implications for state government as a result of the elimination of the shrimp surcharge fee. There will be an estimated decrease in state revenue of less than $3,000 per year, based on a four-year average of fees collected by the department. There will be no fiscal implications for local government.

Mr. Richards also has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of administration and enforcement of the repeal will be the elimination of unnecessary rules. There will be no adverse fiscal impact on microbusinesses, or small businesses required to comply with the repeal. Any existing shrimp surcharge fee paid by those entities and individuals will no longer be required.

Written comments on the proposal may be submitted to Gene Richards, Assistant Commissioner for Marketing Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The repeal is proposed under Texas Agriculture Code, §134.014, as amended by House Bill 4593, which eliminates the shrimp marketing surcharge fee and the authority for the department to set such a fee by rule; and §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The proposal affects the Texas Agriculture Code, Chapter 134.

§16.4.Texas Shrimp Marketing Assistance Program Surcharge.

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 June 19, 2009.

TRD-200902508

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 17. MARKETING AND PROMOTION

SUBCHAPTER E. TEXAS-ISRAEL EXCHANGE RESEARCH PROGRAM

4 TAC §§17.100, 17.102, 17.104

The Texas Department of Agriculture (the department) proposes amendments to §§17.100, 17.102 and 17.104, concerning the Texas-Israel Exchange (TIE) Research Program. The amendments are proposed to make these sections conform to new requirements established under Senate Bill 1016 (SB 1016), 81st Legislative Session, 2009, that changed the existing TIE Board to an Advisory Committee.

Mr. Murray also has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of implementation of the amendments will be the updating of rules to conform to statutory requirements. There will be no adverse fiscal impact on microbusinesses, or small businesses or individuals required to comply with the amended sections.

The amendments are proposed under the Texas Agriculture Code (the Code), §45.004, which provides the department with the authority to adopt rules for administration of its duties under Chapter 45, as amended by SB 1016; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The proposal affects the Texas Agriculture Code, Chapter 45.

§17.100.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly states otherwise.

(1) Advisory Committee [~~Board~~]--The Texas-Israel Exchange Research Program (TIE) Advisory Committee [ ~~Fund board~~ ], as established by the Texas Agriculture Code, Chapter 45.

(2) - (3) (No change.)

(4) TIE--The Texas-Israel Exchange Research Program [~~Fund~~ ], as set forth in the Texas Agriculture Code, Chapter 45.

§17.102.Administration.

The TIE program will be administered by a coordinator appointed by the Commissioner, who shall work in cooperation with a counterpart designated by Israel to support projects of mutual benefit to Texas and Israel. The TIE Advisory Committee may provide guidance and direction on activities authorized under Texas Agriculture Code, Chapter 45, and the expenditure of money to include: [The Board will ratify the choice of projects to receive TIE funding, after consultation with corresponding designees of the Israeli government. An equal amount of monies shall be contributed by Texas and Israel for each year the program is in operation.]

(1) advising the department on the selection of categories of grants to be administered by the department and advising the department on matters involving mutual assistance, trade, and business development between Texas and Israel;

(2) advising on the awarding of grants, in cooperation with the corresponding Israeli board, to provide funding for projects to mutually benefit both regions; and

(3) consulting with the corresponding Israeli board to efficiently address matters of mutual importance while avoiding duplication of effort.

§17.104.Application Procedure.

(a) The department shall issue a [~~an annual~~] request for proposals, to be published in the Texas Register during each grant cycle [~~fiscal year~~] for which Texas and Israel have dedicated an equal amount of funds for implementing the TIE program.

(b) - (e) (No change.)

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 June 22, 2009.

TRD-200902547

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

Subchapter F. TEXAS WINE MARKETING ASSISTANCE PROGRAM

4 TAC §17.200, §17.201

The Texas Department of Agriculture (the department) proposes amendments to Chapter 17, Subchapter F, §17.200 and §17.201, concerning the Texas Wine Marketing Assistance Program. The amendments are proposed to modify §17.200 and §17.201 to conform with changes made by Senate Bill 1016 (SB1016), 81st Legislature, 2009 which eliminates the existing Wine Marketing Assistance Program Advisory Committee and the existing Wine Industry Development Advisory Committee and creates a new Wine Industry Development and Marketing Advisory Committee. The amendments change the name of the committee, and updates the committee responsibilities.

Gene Richards, Assistant Commissioner for Marketing and Promotion, has determined that for the first five years the proposed amended sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amended section.

Mr. Richards also has determined that for each year of the first five years the proposed amended sections are in effect the public benefit anticipated as a result of enforcing the proposed amended sections will be to provide interested members of the public with accurate information regarding the department's wine advisory committee. For the first five-year period the proposed amended section is in effect, there will be no economic cost for micro-businesses, small businesses or individuals who are required to comply with the section, as proposed.

Comments on the proposed amendments may be submitted to Gene Richards, Assistant Commissioner for Marketing and Promotion, 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 amendments to §17.200 and §17.201 are proposed under the Texas Agriculture Code (the Code), §12.016, which provides the department with the authority to adopt rules to administer its powers and duties under the Code; §50B.002 which authorizes the Commissioner of Agriculture to appoint a Wine Industry Development and Marketing Advisory Committee; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The Code affected by the proposal is the Texas Agriculture Code, Chapters 12 and 50B.

§17.200.Definitions.

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

(1) Committee--The Wine Industry Development and Marketing Advisory Committee, appointed by the Commissioner of Agriculture (Commissioner) pursuant to the Texas Agriculture Code, §50B.002.

~~[(1) Committee--Texas Wine Marketing Assistance Program Advisory Committee, as established by the Texas Alcoholic Beverage Code, Chapter 110.]~~

(2) - (6) (No change.)

§17.201.Wine Marketing Assistance Program [ ~~and Advisory Committee~~ ].

(a) (No change.)

(b) The committee's responsibilities under this subchapter are as follows.

~~[(1) The committee shall be composed of the following members appointed by the commissioner:]~~

~~[(A) three representatives of Texas wineries;]~~

~~[(B) one representative of Texas wine wholesalers;]~~

~~[(C) one representative of Texas package stores;]~~

~~[(D) one representative of the department; and]~~

~~[(E) one representative of the commission.]~~

~~[(2) Committee members serve without compensation or reimbursement of expenses;]~~

~~[(3) Four members of the committee constitute a quorum sufficient to conduct the meetings and business of the committee;]~~

(1) [~~(4)~~] The committee shall assist the commissioner in establishing and implementing the Texas Wine Marketing Assistance Program and the Wine Industry Development Fund; and

(2) [~~(5)~~] The committee may advise the department on the adoption of rules relating to the administration of the Texas Wine Marketing Assistance Program and the Wine Industry Development Fund.

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 June 22, 2009.

TRD-200902567

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

SUBCHAPTER H. TEXAS SHRIMP MARKETING ASSISTANCE PROGRAM

4 TAC §17.400, §17.401

The Texas Department of Agriculture (the department) proposes amendments to §17.400 and §17.401, concerning the shrimp marketing assistance program and advisory committee. The amendments are proposed to implement changes made to Texas Agriculture Code, Chapter 47 by House Bill 4593 (HB 4593), 81st Legislative Session, 2009, which eliminated the shrimp marketing assistance program surcharge for shrimp raised in aquaculture facilities, and provides that the shrimp marketing assistance program apply only to wild-caught shrimp commercially harvested from coastal waters by a shrimp boat licensed by the Texas Parks and Wildlife Department. The amendments to §17.400 eliminate the definition of "Aquaculture" and modify the definition of "Texas-produced shrimp" to make it consistent with the definition in HB 4593. The amendments to §17.401 add "wild-caught shrimp" throughout the section and eliminate the member of the Texas shrimp aquaculture industry from the advisory committee.

Gene Richards, assistant commissioner for marketing programs, has determined that, for the first five-year period the amended sections are effect there will be no fiscal implications for state or local government.

Mr. Richards 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 the administration and enforcement of the amended sections will be having the rules consistent with statutory requirements. There will be no adverse fiscal impact on microbusinesses, small businesses or individuals required to comply with the amended sections.

The amendments are proposed under the Texas Agriculture Code, §47.052, which provides the department with the authority to adopt rules for administration of the shrimp marketing program; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The proposal affects the Texas Agriculture Code, Chapter 47.

§17.400.Definitions.

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

[(1) Aquaculture--pertaining to the business of producing and selling cultured Texas-produced shrimp which have been raised in facilities such as a pond, tank, cage or other structure capable of holding the cultivated species in confinement wholly within or on private land or water or within permitted public land or water.]

(1) [~~(2)~~] Coastal waters--All the salt water of the state, including the portion of the Gulf of Mexico that is within the jurisdiction of the state.

(2) [~~(3)~~] Commissioner--The Commissioner of Agriculture, Texas Department of Agriculture.

(3) [~~(4)~~] Committee, or Advisory Committee--The Texas Shrimp Marketing Assistance Program Advisory Committee, as established by the Texas Agriculture Code, Chapter 47, Subchapter B.

(4) [~~(5)~~] Department--The Texas Department of Agriculture.

(5) [~~(6)~~] Program--The Texas shrimp marketing assistance program.

(6) [~~(7)~~] Texas-produced shrimp-- Wild caught shrimp commercially harvested from coastal waters by a shrimp boat licensed by the Parks and Wildlife Department [ ~~and/or produced within the borders of the state~~].

§17.401.Shrimp Marketing Assistance Program and Advisory Committee.

(a) The Texas shrimp marketing assistance program is established in the department to promote and market the Texas wild-caught shrimping industry and to educate the public about [ ~~assist the Texas shrimp industry in promoting and marketing Texas-produced shrimp and educating the public about the Texas shrimp industry and~~] Texas-produced shrimp.

(b) The department's responsibilities under this subchapter are as follows.

(1) - (2) (No change.)

(3) The department shall promote and advertise the Texas wild-caught shrimping [~~shrimp~~] industry via the program as follows:

(A) develop and maintain a database of Texas shrimp wholesalers that sell Texas-produced shrimp;

(B) operate a toll-free telephone number to:

(i) receive inquiries from persons who wish to purchase [~~a particular type of~~] Texas-produced shrimp; and

(ii) make information about the Texas wild-caught shrimping [~~shrimp~~] industry available to the public;

(1) The committee shall be composed of the following nine [10] members appointed by the Commissioner:

(A) - (B) (No change.)

~~[(C) one member of the Texas shrimp aquaculture industry;]~~

(D) [~~(E)~~] one wholesale wild-caught shrimp [~~fish~~] dealer;

(E) [~~(F)~~] one person employed by an institution of higher education as a researcher or instructor specializing in the area of food science, particularly seafood;

(F) [~~(G)~~] one member of the seafood restaurant industry; and

(G) [~~(H)~~] one representative of the public.

(2) - (8) (No change.)

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 June 19, 2009.

TRD-200902507

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

CHAPTER 20. COTTON PEST CONTROL

The Texas Department of Agriculture (the department) proposes 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. The amendments and new sections are proposed 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.

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 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. The proposed stalk destruction deadlines are proposed based on consideration of a recommendation made by the Texas Boll Weevil Eradication Foundation and its Technical Advisory Committee. The Cotton Producer Advisory Committee for Zone 8, at a recent meeting discussed the proposed destruction deadline for Zone 8, Area 2, but did not provide a recommendation. The Cotton Producer Advisory Committee for Zone 7, at a recent meeting, opposed amending the destruction deadline for Zone 7, Area 1. New scientific analysis that indicates November 10 is the appropriate date for these areas. This analysis includes factors relevant to cotton production such as the number heat units required and the corresponding accumulation time periods relative to specific production zones, the number of days required for harvest and stalk destruction activities, and other factors. The department therefore, believes that the proposed changes for both zones are scientifically based and will accelerate boll weevil eradication. 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. 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.

Dr. Robert Crocker, Coordinator for Pest Management, Citrus and Biotechnology Programs, has determined that for the first five-year period the amended and new sections are in effect, there will be a fiscal implication for the state, but no impact for local government as a result of enforcing or administering the amended and new sections.

The impact for state government will result from the implementation of new §20.30 and §20.31 and will include a loss to general revenue from the collection of administrative penalties for violations of the department's stalk destruction rules, an average of $23,843.64 per year, based on administrative penalties collected for the previous three years. However, a portion of the loss of revenue will be offset by an increase in available funds that may be used for the purpose of treating hostable cotton or for other expenses related to boll weevil eradication. The impact of the fees will depend on the amount of hostable commercial cotton fees collected for hostable volunteer and other noncommercial cotton present in a commercial cotton field after the cotton destruction deadline and on the amount of hostable noncommercial cotton fees collected for hostable volunteer or other hostable noncommercial cotton in a crop field, other than a commercial cotton field, that is not destroyed on or before the 14th day after notice is given. The amount of fees collected will be dependent on the number of acres of cotton planted and the weather, both of which vary in ways that cannot currently be predicted. Known factors that affect the number of acres of cotton planted are world cotton consumption (which varies dependent on world economic factors), costs of production (seed, fuel, fertilizer, irrigation), and other economic factors. Lack of soil moisture can leave large numbers of un-germinated seeds that may come up when rain arrives months later; such situations tend to produce increased amounts of noncommercial cotton in crops subsequently planted in those fields.

A hostable commercial cotton fee applies to hostable volunteer or other hostable noncommercial cotton, including regrowth, that is present in a commercial cotton field after the cotton destruction deadline or any extension of the destruction deadline. The hostable commercial cotton fee is calculated based on (the number of acre-weeks of hostable commercial cotton fee collected at $5.00 per acre for each full or partial week through the end of the fifth week after the date of the destruction deadline or any approved extension of the destruction deadline) plus (the number of acre-weeks of hostable commercial cotton fee collected at $7.50 per acre for each full or partial week through the end of the fifth week after the date of the destruction deadline or any approved extension of the destruction deadline).

In 2008, the department found a total of 15,644 acres of commercial cotton to be noncompliant with the destruction deadline; that represented 239 cases, for an average of 65.5 acres per case. The number of cases noncompliant for 1-7 days, 8-14 days, 15-21 days, 22-28 days, 29-35 days, 36-42 days and 43-49 days was 239 cases, 229 cases, 60 cases, 13 cases, 8 cases, 4 cases and 1 case, respectively. On that basis the department estimates that the hostable commercial cotton fee may generate approximately $182,132 per year, for years similar to 2008.

The amount of hostable noncommercial cotton fees to be collected for hostable volunteer or other hostable noncommercial cotton in a crop field, other than a commercial cotton field, that is not destroyed on or before the 14th day after notice is given cannot be estimated at this time, as no previous data are available on the numbers of such acres of cotton and because year-to-year weather strongly influences the amount of such cotton. However, for future situations where hostable volunteer or other hostable noncommercial cotton is found in a crop field, other than a commercial cotton field, and it is not destroyed on or before the 14th day after notice is given, 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. For cases where hostable volunteer or other hostable noncommercial cotton is present in less than fifty percent of the crop field, then the fee will be based on one-half of the total acreage of the crop field. However, the total fee per acre shall not exceed an amount equal to the per acre assessment for boll weevil eradication that would be applicable for commercial cotton at that location.

Dr. Crocker also has determined that for each year of the first five years the amended section is in effect, the public benefit anticipated as a result of enforcing the amended section will be to protect the state's and Texas cotton producers' investment in boll weevil eradication, and to accelerate eradication of the boll weevil in Texas. There will be a fiscal impact on small or microbusinesses and individual cotton producers required to comply with new §20.30 and §20.31. The actual cost of compliance to businesses or individual cotton growers is not known because of the unpredictability of how much hostable noncommercial cotton will come up in a given year, as well as the broad range of control options for control of noncommercial cotton; such options include physical destruction of hostable noncommercial cotton plants, chemical herbicides and cultivation practices. As noted, the hostable commercial cotton fee for hostable cotton in commercial cotton fields will be calculated based on (the number of acre-weeks of hostable commercial cotton fee collected at $5.00 per acre for each full or partial week through the end of the fifth week after the date of the destruction deadline or any approved extension of the destruction deadline) plus (the number of acre-weeks of hostable commercial cotton fee collected at $7.50 per acre for each full or partial week through the end of the fifth week after the date of the destruction deadline or any approved extension of the destruction deadline). The hostable noncommercial cotton fee for hostable cotton in fields other than commercial cotton fields will be $5.00 per acre for each full or partial week until the cotton is destroyed. The total fee per acre for hostable cotton in locations other than commercial cotton fields shall not exceed the per acre assessment for boll weevil eradication that would be applicable if the location were a commercial cotton field. For cases where hostable volunteer or other hostable noncommercial cotton is present in less than fifty percent of the crop field, then the fee will be based on one-half of the total acreage of the crop field. Because the enactment of HB 1580 has declared that hostable volunteer and other noncommercial cotton is a public nuisance that threatens the eradication of the boll weevil in Texas, and that a hostable cotton fee shall be imposed on producers who do not take actions necessary to eliminate such cotton, and the agency need not consider other regulatory methods. Therefore, a regulatory flexibility analysis is not required.

Comments on the proposal may be submitted to Dr. Robert Crocker, Coordinator for Pest Management, Citrus and Biotechnology Programs, 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.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §20.1, §20.3

The amendments are proposed 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.

Texas Agriculture Code, Chapter 74, is affected by the proposal.

§20.1.Definitions.

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

(1) - (3) (No change.)

(4) Commercial cotton--Cotton grown for sale or barter.

(5) Commercial cotton field--A field in which commercial cotton has been planted, or is being grown, until the planting of a new non-cotton crop in the same field.

(6) [~~(4)~~] Cotton--Any parts of cotton or wild cotton plants; this definition includes all members of the genera Gossypium and Thurberia.

(7) [~~(5)~~] Cotton lint--All forms of raw ginned cotton except linters and gin waste.

(8) [~~(6)~~] Cotton products--Seed cotton, cotton lint, linters, oil mill waste, gin waste, squares, bolls, gin trash, cotton seed, cottonseed hulls, and all other forms of unmanufactured cotton fiber.

(9) [~~(7)~~] Cotton seed--The seed of the cotton plant, separated from lint.

(10) [~~(8)~~] Destroyed, or destruction--Compliant with applicable requirements and restrictions established in Subchapters [~~Subchapter~~] C and D of this chapter; for noncommercial cotton, made non-hostable.

(11) [~~(9)~~] Destruction deadline--The date established in this chapter for destruction of cotton stalks.

(12) [~~(10)~~] Eradicated area--An area apparently free of boll weevil or, for which scientific documentation acceptable to the department has been provided that indicates that no boll weevils were captured for a period of at least one cotton growing season by weevil pheromone traps operated by the Texas Boll Weevil Eradication Foundation or other governmental agency.

(13) [~~(11)~~] Eradication area--A defined area in which a boll weevil eradication program has been initiated.

(14) [~~(12)~~] Foundation--The Texas Boll Weevil Eradication Foundation, Inc.

(15) [~~(13)~~] Functionally eradicated area--An area meeting the trapping criteria for a suppressed area with no confirmed evidence of boll weevil reproduction occurring in the area and no oviposition in squares, and in which the movement of regulated articles presents a threat to the success of the boll weevil eradication program. The boll weevil population must be equal to or less than an average of 0.001 boll weevils per trap per week for the cotton growing season as measured by boll weevil pheromone traps operated by the Texas Boll Weevil Eradication Foundation or other governmental agency.

(16) [~~(14)~~] Gin motes--Short fragments of unmanufactured cotton fiber removed from lint cleaners after ginning cotton.

(17) [~~(15)~~] Gin trash--All material produced during the cleaning and ginning of seed cotton, except lint, linters, cotton seed, and gin waste.

(18) [~~(16)~~] Gin waste--All forms of unmanufactured waste cotton fiber resulting from the ginning of seed cotton, including gin motes.

(19) [~~(17)~~] Hostable material--In subchapter A or B of this chapter, cotton fruiting structures such as buds, squares, flowers or bolls.

(20) Hostable commercial cotton fee--The hostable cotton fee established in Texas Agriculture Code, §74.032, as enacted by House Bill 1580, 81st Legislature, 2009, which applies to hostable cotton stalks, volunteer cotton or noncommercial cotton which remain past the stalk destruction deadline in a commercial cotton field.

(21) Hostable cotton (or hostable)--In subchapters C and D of this chapter, cotton with fruiting structures including buds, squares, flowers, uncracked bolls or unopened bolls.

(22) Hostable noncommercial cotton fee--The volunteer cotton fee established in Texas Agriculture Code, §74.119, as amended by House Bill 1580, 81st Legislature, 2009, which applies to hostable cotton stalks, volunteer cotton or noncommercial cotton in a crop field or other location that is not a commercial cotton field.

(23) [~~(18)~~] Linters--Residual unmanufactured cotton fiber separated from cottonseed after the lint has been removed.

(24) [~~(19)~~] New crop--Cotton planted on or after the earliest planting date that follows the most recent destruction deadline.

(25) [~~(20)~~] Non-hostable cotton (or non-hostable)--In subchapters C and D of this chapter [ ~~Refers to~~] cotton [~~in the field~~] that is free of living, normally colored (not wilted or darkened) fruiting structures including buds, squares, flowers, uncracked bolls or unopened bolls.

(26) Noncommercial cotton--Any cotton that is not commercial cotton.

(27) [~~(21)~~] Oil mill waste--Waste products, including linters, derived from the milling of cottonseed.

(28) [~~(22)~~] Plow--To dislodge or sever the roots of plants in a manner which prevents further growth. Equipment used to accomplish this could include a stalk puller, any type of plow, or similar implement.

(29) [~~(23)~~] Protection plan--A plan developed for the purpose of mitigating, with the goal of preventing, boll weevil infestation and establishment in an area. Mitigating measures may include, but are not limited to, the following:

(A) the field treatment of cotton and cotton products prior to delivery to an area or a gin by an approved insecticide;

(B) requirements for moving, handling, storage and treatment or use of approved insecticide applications to regulated articles; and

(30) [~~(24)~~] Regrowth cotton, or regrowth--Vegetative and/or reproductive growth produced on a cotton plant following its destruction or partial destruction.

(31) [~~(25)~~] Restricted Area--An area designated as suppressed, functionally eradicated, or eradicated of boll weevils, as those terms are defined in this section.

(32) [~~(26)~~] Seed cotton--All forms of un-ginned cotton from which the seed has not been separated.

(33) [~~(27)~~] Stalk puller--An implement which dislodges the roots of cotton plants by pulling up the stalks.

(34) [~~(28)~~] Suppressed area--An area in which some boll weevil reproduction may be present in the area or a portion thereof, and in which the movement of regulated articles presents a threat to the success of the boll weevil eradication program The boll weevil population must be equal to or less than 0.025 boll weevils per trap per week for the cotton-growing season as measured by boll weevil pheromone traps operated by the Texas Boll Weevil Eradication Foundation or other governmental agency.

(35) [~~(29)~~] Trap--Type [~~type~~ ] of adult boll weevil pheromone trap approved by the Texas Boll Weevil Eradication Foundation.

(36) [~~(30)~~] Treatment--The act of eliminating possible cotton pest infestation(s) by means of cleaning, spraying or fumigation to eliminate the infestation.

(37) [~~(31)~~] Volunteer cotton--For purposes of this chapter, a cotton plant or plants that were not deliberately planted.

§20.3.Violations and Enforcement Actions.

(a) Violations. In addition to any other violations that may arise under requirements of the Texas Agriculture Code, Chapter 74, or regulations adopted pursuant to the Texas Agriculture Code, Chapter 71 or Chapter 74:

(1) Failure to comply with cotton stalk destruction requirements outlined in Subchapter C of this chapter (relating to Stalk Destruction Program) or Subchapter D of this chapter (relating to Regulation of Volunteer and Other Noncommercial Cotton; Hostable Cotton Fee) constitutes a violation.

(2) Cotton that is allowed to develop fruiting structures after the destruction deadline constitutes a violation , if the producer or responsible party fails to submit a required hostable commercial cotton fee or a hostable noncommercial cotton fee.

(b) (No change.)

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 June 22, 2009.

TRD-200902570

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

SUBCHAPTER C. STALK DESTRUCTION PROGRAM

4 TAC §20.22

The amendments are proposed 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.

Texas Agriculture Code, Chapter 74, is affected by the proposal.

§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) - (5) (No change.)

(6) All requests for extensions must be received by the department no later than 10 business days [~~shall be postmarked (if mailed) or automatically date stamped (if electronically transmitted) on or~~] prior to the cotton destruction deadline. Late submission of an extension request may result in its denial. [However, if a field is in compliance with destruction requirements on the deadline, but later is in violation due to regrowth or volunteer cotton with fruiting structures as a result of extended periods of wet weather that does not allow for mechanical destruction, an extension request may be submitted after the deadline. Once a field has been declared a public nuisance by the department, no extension requests will be granted for that field until after the field has become compliant.]

(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) (No change.)

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 June 22, 2009.

TRD-200902571

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 2, 2009

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

SUBCHAPTER D. REGULATION OF VOLUNTEER AND OTHER NONCOMMERCIAL COTTON; HOSTABLE COTTON FEE

4 TAC §20.30, §20.31

The new sections are proposed 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.