4 TAC §§17.51-17.56, 17.60
The Texas Department of Agriculture (the department) proposes
amendments to §§17.51-17.56, and 17.60 concerning application and
registration to use the TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally
Texas and new Go Texan Promotion Mark. The purpose of the amendments is to
incorporate new provisions for use of the "Go Texan" Promotion Mark into existing
rules. In addition, proposed amendments for registration and use of the Naturally
Texas Promotion Mark include changes in natural fiber content for qualified
products which will allow more product lines to use the Naturally Texas Promotion
Mark. Fees for registration for use of the Naturally Texas Promotion Mark
will be reduced to the same fee as the other promotional marks. Section 17.60
is amended to replace the reference to the Texas Grown Nativescape Promotional
Mark with the Go Texan Nativescape Promotional Mark.
Brent Wiseman, Director for Horticulture Marketing, has determined that
for the first five-year period that the proposed sections are in effect, there
will be fiscal implications for state government as a result of enforcing
or administering the sections. The effect on state government for the first
five-year period the sections are in effect is an estimated loss in revenue
of $3,775 per year for a total of $18,875 for the five-year period, as a result
of reduced fees for Naturally Texas program members. However, this loss revenue
should be offset by new members registering to use the Go Texan promotional
mark and by administrative savings from consolidation of programs. This reduction
will make Naturally Texas fees consistent with all other programs. There will
be no fiscal implications for local government as a result of enforcing or
administering the sections.
Mr. Wiseman has also determined that for each year of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing the amendments will be having clearer, more workable rules and the
addition of another program to be utilized by Texas producers to promote Texas
agricultural products. The effect on small and large business for the first
five-year period the amendments are in effect will be a reduction of $25 in
the annual registration fee for Naturally Texas Program members. The effect
on new members to the new Go Texan promotional program will be a registration
fee in the amount of $25 per year.
Comments may be submitted to Brent Wiseman, Director for Horticulture Marketing,
Texas Department of Agriculture, P.O. Box 12847, Austin, Texas, 78711. Comments
must be received no later than 30 days from the date of the publication of
the proposal in the
Texas Register
.
The amendments are proposed under the Texas Agriculture Code
§12.106, which provides the department with the authority to adopt rules
as necessary for the administration of its powers and duties under the Texas
Agriculture Code; §12.017, which authorizes the department to regulate
the use of the term "Texas Agricultural Product" by rule; and, §12.0175
which authorizes the department to establish programs to promote products
grown in Texas and products made from ingredients grown in Texas and to charge
a membership fee for those programs not to exceed $50.
The code affected by this proposal is the Texas Agriculture Code, Chapter
12.
§17.51.Definitions.
The following words and terms, when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(12)
(No Change.)
(13)
Go Texan mark--The following mark
being a certification mark registered with the United States Patent and Trademark
Office and also being registered with the Secretary of State's office by the
department.
Figure: 4 TAC §17.51(13)
§17.52.Application for Registration To Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, [ or ]Naturally Texas , or Go Texan Promotional Mark.
(a)
No person shall use, employ, adopt, or utilize the TAP,
Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional mark, unless prior application for registration
has been made to the department and permission to make such use, employment,
adoption, or utilization has been granted.
(b)
Unless permission is otherwise granted by the department:
(1)-(4)
(No change.)
(5)
The Naturally Texas promotional mark may only be utilized
by Naturally Texas program members. The Naturally Texas program is a program
established by the department to promote leather, textile, or apparel products
approved by the commissioner as being:
(A)
composed of
50% or greater
[
at least 60%
] natural fibers derived from crops or livestock grown or raised within
the State of Texas, the identity of the fibers having been preserved throughout
processing so as to be verifiable by satisfactory documentation as having
originated in Texas; or
(B)
composed of
50% or greater
[
at least 60%
] natural fibers, regardless of where grown or raised, which have been
processed into leather, textile, or apparel products within the State of Texas
in a manner which substantially changes their form, and, if composed of natural
fibers derived from crops or livestock grown or raised outside the State of
Texas, the natural fibers must be of a type commercially produced within the
State of Texas.
(6)
The Go Texan promotional mark
may only be utilized by Taste of Texas, Vintage Texas, Texas Grown and Naturally
Texas program members or others meeting requirements as prescribed by this
section.
(c)-(f)
(No Change.)
(g)
Other than the use of the promotional mark, no registrant
shall use any statement of affiliation or endorsement by the State of Texas
or the department in the selling, advertising, marketing, packaging, or other
commercial handling of TAP, Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
products.
(h)
Registrants shall indemnify and hold harmless the commissioner,
the State of Texas, and the department for any claims, losses, or damages
arising out of or in connection with that person's advertising, marketing,
packaging, manufacture, or other commercial handling of TAP, Taste of Texas,
Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
products.
(i)-(m)
(No change.)
(n)
The department shall have the sole right and discretion
to bring infringement or unfair competition proceedings involving the TAP,
Taste of Texas, Vintage Texas, [
or
] Texas Grown
, Naturally
Texas, or Go Texan
promotional marks.
§17.53.Action on Application.
(a)
The assistant commissioner for Marketing and
Promotion
[
Agribusiness Development
], Texas Department of Agriculture,
within 30 days of receipt of an application for registration to use the TAP,
Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional mark, shall make an initial determination
of whether such registration permission shall be granted or denied, and forthwith
notify the applicant in writing of his decision setting forth in detail the
reasons for such grant or denial.
(b)-(c)
(No change.)
§17.54.Denial of Application to use the TAP, Taste of Texas, Vintage Texas, Texas Grown, [ or ] Naturally Texas , or Go Texan Promotional Mark.
An application for registration to use the TAP, Taste of Texas, Vintage
Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional
mark may be denied if:
(1)
application is not made in compliance with §17.52
of this title (relating to Application for Permission To Use the TAP, Taste
of Texas, Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
Promotional Mark);
(2)-(3)
(No change.)
(4)
the applicant has misused the TAP, Taste of Texas,
Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional mark prior to the date of application; or
(5)
(No change.)
§17.55.Registration of Those Entitled To Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, [ or ] Naturally Texas , or Go Texan Promotional Mark.
(a)
The commissioner shall enroll in a register the names of
all persons granted permission under these sections to use the TAP, Taste
of Texas, Vintage Texas, Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional mark. The register shall be available for
public inspection during normal business hours in the offices of the Texas
Department of Agriculture, 1700 North Congress Avenue, in Austin
, Texas
.
(b)
Procedure for annual renewal of registration of persons
authorized to use the TAP, Taste of Texas, Vintage Texas, Texas Grown
,
[
or
] Naturally Texas
, or Go Texan
promotional
mark.
(1)
Except for calendar year 1999, between
[
Between
] January 1 and January 31, annually, the department shall mail
to each person previously registered to use the TAP, Taste of Texas, Vintage
Texas, Texas Grown
,
[
or
] Naturally Texas
, or
Go Texan
promotional mark a statement setting forth the amount due as
an annual registration fee for producers. Nonproducers shall be required to
verify that they remain exempt from payment of registration fees.
(2)-(4)
(No change.)
(c)
Annual registration fees for use of the TAP, Taste of Texas,
Vintage Texas, Texas Grown, [
or
] Naturally Texas
and Go Texan
promotional
mark
[
emblem
] shall be paid to the
department in accordance with the following schedule:
(1)-(4)
(No Change.)
(5)
Naturally Texas promotional mark--
$25;
[
$50.
]
(6)
Go Texan promotional mark--$25.
(d)
Annual registration fees paid to the department
for the use of the TAP, Taste of Texas, Vintage Texas, Texas Grown or Naturally
Texas promotional marks may include the use of the Go Texan promotional mark.
§17.56.Termination of Registration To Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, [ or ] Naturally Texas , or Go Texan Promotional Mark.
(a)
Registration to use the TAP, Taste of Texas, Vintage Texas,
Texas Grown, [
or
] Naturally Texas
, or Go Texan
promotional
mark may be revoked at any time if the mark is misused.
(b)
Misuse of the TAP, Taste of Texas, Vintage Texas, Texas
Grown
,
[
or
] Naturally Texas
, or Go Texan
promotional mark includes, but is not limited to:
(1)-(3)
(No Change.)
(c)
Proceedings for the revocation of registration to use the
TAP, Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally
Texas
, or Go Texan
promotional mark shall be conducted in the
manner provided for contested cases by the Administrative Procedure Act, Texas
Government Code,
Chapter 2001,
and Chapter 1 of this title (relating
to General Practice and Procedure).
(d)
A proceeding for revocation of registration to use the
TAP, Taste of Texas, Vintage Texas, Texas Grown
,
[
or
]
Naturally Texas
, or Go Texan
promotional mark shall not preclude
the commissioner from pursuing any other remedies, including, where applicable,
the penal and injunctive remedies provided for by law.
Go Texan
[
Texas Grown
]
NativeScape Certification.
(a)
Definitions. In addition to the words and terms provided
at §17.51 of this title (relating to Definitions) the following words
and terms when used in this subchapter, shall have the following meanings,
unless the context clearly indicates otherwise.
(1)-(2)
(No Change.)
(3)
Go Texan
[
Texas Grown
] NativeScape
mark--The copyrighted Texas Department of Agriculture
"Go Texan"
[
"Texas Grown"
] mark and the term "NativeScape" centered immediately
below the
"Go Texan"
[
"Texas Grown"
] mark.
Figure: 4 TAC §17.60 (a)(3)
(b)
Application.
(1)
Applications submitted under this section shall be made
in writing on a form prescribed by the department and submitted to the Director
for Horticulture Marketing, Marketing and
Promotion
[
Agribusiness
Development
] Division, Texas Department of Agriculture, P.O. Box 12847,
Austin, Texas 78711, including the prescribed application fee.
(2)
Action on an application to use the
Go Texan
[
Texas Grown
] NativeScape promotional mark shall be in accordance
with §17.53 of this title (relating to Action on Application).
(3)
Denial of an application to use the
Go Texan
[
Texas Grown
] NativeScape promotional mark shall be in accordance
with §17.54 of this title (relating to Termination of Application To
Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally
Texas
, or Go Texan
Promotional Mark).
(c)
Certification.
(1)
A one-time registration will be required of eligible producers
who wish to have a site which has been established with only native plant
species as defined under this section designated as a
Go Texan
[
Texas Grown
] NativeScape site.
(2)
Once an application has been processed and approved,
a certificate shall be issued authorizing a producer to represent a site as
certified under this section to use the
Go Texan
[
Texas Grown
] NativeScape promotional mark.
(d)
Use of Logo.
(1)
No person shall use, employ, adopt or utilize the
Go Texan
[
Texas Grown
] NativeScape promotional mark, unless
prior application for certification has been made to the department and permission
to make such use, employment, adoption, or utilization has been granted.
(2)
The
"Go Texan
[
Texas Grown
]
NativeScape" promotional mark may only be utilized by a producer to designate
a site certified under this section.
(3)
Termination of use of the
Go Texan
[
Texas Grown
] NativeScape promotional mark shall be in accordance with
§17.56 of this title (relating to Termination of Registration To Use
the TAP, Taste of Texas, Vintage Texas, Texas Grown, [
or
] Naturally
Texas
or Go Texan
Promotional Mark).
(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
March 22, 1999.
TRD-9901712
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: May 2, 1999
For further information, please call: (512) 463-4075