Part 1.
TEXAS DEPARTMENT OF AGRICULTURE
Chapter 1.
WEIGHTS AND MEASURES
The Texas Department of Agriculture (the department) adopts amendments
to §§12.1, 12.11, 12.12, 12.40, 12.42, 12.50 concerning Weights
and Measures without changes to the proposed text as published in the January
21, 2000, issue of the
Texas Register
(25
TexReg 337). The sections are adopted without changes and will not be republished.
The amendments are adopted generally to clarify definitions, registration
requirements, provisions regarding expiration and issuance of licenses. The
increase in fees at §12.12 is adopted to allow the department to recover
its full costs of testing, in accordance with the Texas Agriculture Code, §12.0144.
The amendment to §12.1 clarifies the definition of Anniversary Date,
adds the definition for Operator of a Device, clarifies the definition of
County, Deputy and State Public Weigher, and adds to the definition of Service
Report. The amendment to §12.11 clarifies the language concerning annual
registration, initial and renewal registration procedures, and display of
certificate of registration; to state the department's responsibility if renewal
notices are not received by the operator; and prohibits the transfer of a
device registration. Also, the numbering within the section has changed due
to the additions. The amendments to §12.12 clarify the distinction between
a liquid measuring device and a bulk meter, provide a means to classify multi-product
dispensers and specify the increase in device registration fees. The amendments
to §12.40 clarify the language concerning the expiration of a Licensed
Service Company's license and modify the classes of licenses. The amendments
to §12.42 change the address of the destination for the service report,
clarify the conditions for which a service report is required, and add time
requirements for submission and the destination for out-of-order tags. Also,
the numbering within the section has changed due to the additions. The amendment
to §12.50 modifies the classes of licenses.
A comment was received from the Texas Petroleum Marketers and Convenience
Store Association (TPCA) regarding the amendments to §12.12, specifically
concerning the device registration fees. The TPCA expressed concerns regarding
the cost component of the fuel pump calibration program which necessitated
a fee increase. The department is under statutory mandate to recover costs
associated with the administration of the weights and measures program and
although fees had not been raised since 1991, program responsibilities have
increased while FTEs and appropriations have diminished year after year. In
past years, the department has been charging the same rate for all fuel pumps,
regardless of the additional testing required for multiple blend devices,
resulting in cost recovery of only 73% of actual direct and indirect costs.
The department believes that a revision of the fee schedule to provide an
equitable fee structure to all fuel retailers while accommodating the influx
of multi-product dispensers in the market place is necessary, and has adopted
the proposed fees in §12.12 without changes. The department has determined
that the new fees should not be collected immediately, and, in order to allow
registrants time to adjust to the new fees, the fees will not be imposed until
the next renewal period, for registrations expiring on July 31, 2000, and
thereafter.
Subchapter A. GENERAL PROVISIONS
4 TAC §12.1
The amendment to §12.1 is adopted under the Texas Agriculture
Code (the Code), §13.002, which provides the Texas Department of Agriculture
with the authority to enforce the provisions of the Texas Agriculture Code,
Chapter 13, concerning weights and measures; and the Code §12.016, which
provides the department with the authority to adopt rules necessary for administration
of the Code.
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 March 22, 2000.
TRD-200002096
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: April 11, 2000
Proposal publication date: January 21, 2000
For further information, please call: (512) 463-4075
4 TAC §12.11, §12.12
The amendments to §12.11 and §12.12 are adopted
under the Texas Agriculture Code (the Code), §13.002, which provides
the Texas Department of Agriculture (the department) with the authority to
enforce the provisions of the Code, Chapter 13, concerning weights and measures;
the Code, §13.1011, which provides the department with the authority
to adopt rules registration under Chapter 13; §13.1151, which provides
the department with the authority to set and charge a registration fee for
registration of a pump, scale or bulk or liquefied petroleum gas metering
device registered under the Code, §13.1011; and the Code, §12.016,
which provides the department with the authority to adopt rules necessary
for administration of the Code.
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 March 22, 2000.
TRD-200002097
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: April 11, 2000
Proposal publication date: January 21, 2000
For further information, please call: (512) 463-4075
4 TAC §12.40, §12.42
The amendments to §12.40 and §12.42 are adopted
under the Texas Agriculture Code (the Code), §13.002, which provides
the Texas Department of Agriculture (the department) with the authority to
enforce the provisions of the Texas Agriculture Code, Chapter 13, concerning
weights and measures; the Code, §13.1012, which provides the department
with the authority to register persons to conduct installation or service
activities and to adopt rules setting out requirements for registrants; and
the Code §12.016, which provides the department with the authority to
adopt rules necessary for administration of the Code.
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 March 22, 2000.
TRD-200002098
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: April 11, 2000
Proposal publication date: January 21, 2000
For further information, please call: (512) 463-4075
4 TAC §12.50
The amendment to §12.50 is adopted under the Texas Agriculture
Code (the Code), §13.002, which provides the Texas Department of Agriculture
(the department) with the authority to enforce the provisions of the Texas
Agriculture Code, Chapter 13, concerning weights and measures; the Code §13.302
, which provides the department with the authority to license persons to inspect
or test liquefied petroleum gas meters and adopt rules for inspecting, testing
and keeping records of liquefied petroleum gas meters; and the Code §12.016,
which provides the department with the authority to adopt rules necessary
for administration of the Code.
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 March 22, 2000.
TRD-200002099
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: April 11, 2000
Proposal publication date: January 21, 2000
For further information, please call: (512) 463-4075
Subchapter J. ORGANIC COTTON RULES
4 TAC §§3.600 - 3.606
The Texas Department of Agriculture (the department) adopts
new Chapter 3, Subchapter J, §§3.600 - 3.606 concerning organic
cotton regulations, with changes to the proposal published in the February
11, 2000, issue of the
Texas Register
(25
TexReg 993). New §§3.600 - 3.606 are adopted with changes. The department
has withdrawn proposed new §§3.607 - 3.609, published in the February
11, 2000, issue of the
Texas Register
, and
has simultaneously filed new §§3.607 - 3.609 in a separate submission
in the "Proposed section" of this issue of the
Texas
Register
.
Because of the complexity of issues involved and the large number of comments
received from the variety of persons affected by the new sections, the department
feels that some background information on the boll weevil eradication program
is warranted in order to fully explain the evolution of the program to this
point and why the adoption of organic cotton rules is necessary at this time.
Texas is the largest cotton producing state in the nation. In 1999, Texas
produced 30% of all US bales of cotton, over 5 million bales, with over 6
million acres in cotton production. Texas is also the largest producer of
organic cotton in the nation, with 70% of the United States' organic cotton
acreage grown in Texas on about 10,089 acres. Texas organic cotton is recognized
worldwide as a quality product primarily due to Texas' strict organic certification
program requirements. The organic cotton market has experienced much growth
in recent years with Texas in the forefront as a major provider of cotton
to a growing organic product industry.
The boll weevil and pink bollworm have long been considered a menace to
the cotton industry, leading to the declaration of both as public nuisances
by the Texas legislature. After years of discussion of growers and others
in the cotton industry of establishing in law and implementing a state-wide,
comprehensive boll weevil eradication program and after the veto of such legislation
in 1991, the boll weevil eradication program was established in law in 1993.
The law was amended in 1993 and 1995, and again in 1997 as a result of a successful
challenge to the constitutionally of the eradication program. Both the original
and the current law include language specifically directed at production of
organic cotton. The 1993 law required that the board adopt rules that protected
the eligibility of organic growers to be certified by the Commissioner; that
such rules ensure that certification continue to meet national standards in
order for organic cotton to maintain international marketability; and that
such rules maintain the effectiveness of the boll weevil eradication program.
That section of the law was amended in 1995 to include a provision allowing
indemnification of organic growers for reasonable losses that result from
a prohibition of production of organic cotton, or from any requirement of
destruction of organic cotton. The new language also provided that the board
could require mitigation of losses with the production of an alternative crop,
that the board cannot treat or require treatment of organic cotton fields
with chemicals not approved for use on certified organic cotton, and that
plow-up could be required as an alternative to chemical treatment. Another
significant change made in 1995 was that rules and procedures developed relating
to organic cotton growers were to, in all events, maintain the effectiveness
of the eradication program. The last change to this section, made in 1997,
gave rulemaking authority to the department, rather than the foundation board.
The purpose of the boll weevil and pink bollworm eradication program, as
stated by the legislature, is to eradicate the boll weevil and the pink bollworm.
The law provides a mechanism by which cotton growers can establish boll weevil
eradication programs on a zone basis to meet the needs of their respective
areas and work through a single entity to manage a state-wide eradication
and suppression program. The Texas Boll Weevil Eradication Foundation, Inc.,
is a nonprofit entity authorized by law to carry out boll weevil eradication
programs in Texas. Texas is one of 17 cotton-growing states in which eradication
programs are being or have been conducted. Texas, however, is the only state
conducting an eradication program where organic cotton production is significant.
The Texas boll weevil eradication program law is unique in that it provides
for protection of certified organic production and for the use of integrated
pest management techniques in implementing the eradication program. The foundation
is headed by an 18-member Board of Directors, made up of elected representatives
from established zones and others appointed by the Commissioner of Agriculture.
The Commissioner, through department staff has oversight authority over the
operations of the foundation, including approval of program budgets and expenditures.
The Commissioner also has authority to establish nonstatutory zones by rule
and to conduct referenda to establish a program and assessment within a zone.
The department is also the regulatory agency responsible for enforcement of
the law and rules relating to the eradication program, and has rulemaking
authority to administer the boll weevil law.
The eradication program is a grower-driven program. In order for a program
to be established in a zone, the growers in the zone must, by referendum,
approve the establishment of a program and a maximum assessment to fund the
program. As part of the process to establish a zone and zone program, grower
representatives, with the assistance of the foundation technical staff, develop
comprehensive zone budgets. These budgets serve as a basis for determining
the amount of assessment to be paid by growers to fund an eradication program
in their zone. It has been the department's experience that the assessment
rate is generally the most controversial part of the process of establishing
a zone program. Generally, growers can agree that a program is needed, but
may have concerns on the ability to pay an assessment. Growers play an important
part in making decisions about the program in their zone and grower steering
committees work closely with the department and the foundation towards eradication.
Prior to 1998, there were three established eradication zones with active
eradication programs. In calendar year 1999 more zones held referenda, voting
in programs and assessments to fund their programs, bringing the total to
8 active zones. Eradication activities have begun in all zones in which the
program and assessments have been approved. The addition of more zones has
also increased the amount of acreage now included in the statewide eradication
effort from 1.5 million to over 3.5 million acres. With the increase in areas
covered and cotton acreage in active zones, also comes an increase in the
amount of organic cotton acreage being produced in eradication zones. In the
three active zones, prior to 1999, organic production approximated 450 acres.
With the activation of new zones, organic acreage within active eradication
zones has increased to over 7,500 acres.
The program utilized by the foundation for boll weevil eradication is a
precise pest management program based on years of thorough research and, under
the direction of the Commissioner and the department, is carried out in an
economically and environmentally sound manner. The program generally involves
four years of labor intensive activities followed by a minimal maintenance
program to prevent re- infestation. Eradication activities include mapping
and trapping of all cotton fields in a zone, accompanied by cultural, mechanical
and chemical controls. Each zone program varies by region, depending on climate
and agronomic practices. The ultimate goal of each zone program is for the
zone to become weevil-free, allowing cotton growers to become more competitive
in the market by lowering production costs, particularly chemical costs, and
increasing yields. For example, in the Southern Rolling Plains zone, currently
in its 5th year of the program and nearing the point of declaring eradication,
boll weevil trap counts have decreased by 99%, and pesticide use has been
reduced by 96.1%, benefiting the environment.
The cornerstone of the eradication program is to have a comprehensive zone-wide
control effort, which is monitored closely by trapping and using appropriate
control methods. As noted, in the early years of the eradication program,
activities are intense, including the chemical treatments for control of weevils.
Although mechanical and cultural controls are utilized as much as possible
during this phase of the program, the primary method of control is through
the application of malathion during early and late season. Where no effective
control treatments occur, cotton acreage harbors boll weevil populations capable
of infesting or reinfesting neighboring cotton fields.
Alternative methods of control, including the boll weevil bait stick, the
In the past, most organic growers in the (then only three) active eradication
zones have chosen to be indemnified not to grow organic cotton and have entered
into individual agreements with the foundation in that regard. In areas that
were not in active eradication zones, all cotton growers were responsible
for treating their own fields as they saw fit to control pests. There was
no unified monitoring of boll weevil activity or no requirement to act once
weevils reached a certain level of infestation. By voting in an eradication
program, growers in a zone have acknowledged the need to have a unified effort
for control of boll weevils, and have also made a financial investment in
the program by virtue of their paying assessments to fund the program. Organic
cotton growers in a zone are also required to pay an assessment if cotton
is planted. In the conducting of public hearings on the proposal, the department
heard many comments regarding the financial investment made by conventional
growers and how they feel that investment is jeopardized when organic cotton
is allowed to grow untreated. In the same vein, however, most of those growers
agree that a cotton grower should not be prevented from growing cotton if
he or she chooses to do so.
It is anticipated that a significant amount of organic production could
occur in the newer active zones. Where production of other organic crops has
occurred in an active eradication zone, the foundation has treated the area
around the organic field using an established protocol for treatment around
sensitive areas. This protocol includes having an environmental division within
the eradication program that monitors pesticide applications near sensitive
sites, works with complaints received in regard to those areas and performs
quality control on field operations. The foundation also takes steps to minimize
drift onto sensitive areas by more closely monitoring weather conditions when
applications are made, keeping spray pressure at a minimum to produce a larger
droplet, using ground equipment and maintaining buffer zones. With the growing
of additional organic cotton, and recognizing the potential need for the foundation
to enter into agreements with growers regarding their production and the potential
need for the department to require destruction of an organic cotton field
as a last resort, the department has proposed a rule package that it believes
establishes fair and equitable procedures for dealing with the production
of organic cotton in active eradication zones. While entering into agreements
with growers on an individual basis by the foundation has worked on a small
scale and has minimized the problems that may arise related to untreated cotton,
with the existence of a significant amount of acreage in newly active zones,
the department believes that it is necessary to have uniform procedures in
place for all zones, and in particular it is necessary to have a standard
indemnification formula in place for compensation of organic growers whose
cotton is required to be destroyed. The department has attempted to balance,
in these rules, the various roles that it plays as the agency responsible
for overseeing implementation of the boll weevil eradication program and regulating
that program, as well as the agency whose charge is to open markets for Texas
agricultural products including organic agricultural products, and the agency
that has developed and enforces the states organic certification program.
The overall goals of this rule package are to allow organic cotton producers
to grow their cotton without fear of reprimand or discriminatory treatment
in regards to how the eradication program is conducted, while at the same
time assuring the success of the boll weevil eradication program is not compromised,
and to provide organic cotton growers reasonable ompensation should they be
required to destroy their organic cotton field due to a boll weevil infestation.
he department believes that ultimately, the success of the program will benefit
all growers and the public in general by reducing the use of pesticides used
to control the boll weevil and by allowing Texas cotton growers to be more
competitive in the marketplace.
The new rules explicitly provide that the decision to plant certified organic
or transitional cotton in any field located in an active eradication zone
will be made solely by the grower. The department recognizes the need for
the organic cotton market to be sustained and the effect that a loss of the
market share even for one year would have on Texas organic cotton growers
and the organic product industry that has been established. In order to assure
that the foundation and the department are aware of where organic production
is occurring, the rules include provisions for the department to inform organic
growers that they should notify the foundation of their planting intentions.
The foundation is then required to communicate with organic growers in active
zones to discuss eradication activities in and around organic crops, including
planning to minimize problems such as drift. The foundation is further required
to take reasonable steps to protect the certification of organic crops. In
the event that an organic field is inadvertently treated directly or through
drift, the grower will be indemnified.
To address concerns voiced by organic growers that they might be treated
unfairly in comparison to conventional growers in regards to the establishment
of the trigger level and placing of traps, the rules provide that those standards
will be based on scientific and entomological considerations and be implemented
in a fair and equitable manner. The rules also specifically provide that,
once trapping of fields begins and trigger levels are monitored, that organic
cotton fields will be subject to the same trap count trigger levels as conventional
cotton fields. Organic growers will be informed of trigger levels at the beginning
of each season, and if the trigger level changes, the foundation will inform
them at least 48 hours before implementing a new trap trigger level. Traps
will be checked at the same intervals as those in conventional cotton fields.
If an organic cotton field surpasses the established trap count trigger level,
the field in question will be inspected by a technical review committee made
up of individuals who are experts in the area of pest management using objective
standards developed by the foundation's technical advisory committee, which
advises the board on pest management matters. No action will be taken until
such a review has occurred and all reasonable options are explored for addressing
the control of boll weevils in the field. The committee will make a recommendation
to the commissioner for action and the commissioner will make a final determination
on what action is appropriate. In the event that destruction of organic cotton
is deemed by the commissioner as absolutely necessary in order to maintain
the effectiveness of the eradication program, growers are notified that the
crop must be destroyed and provided with time to destroy the crop. The rule
also provides for extensions of the time for a grower to destroy a crop under
certain situations. The rule also provides that growers will be fairly compensated
for their losses, and provides eligibility standards for indemnification on
a base-acreage system. Flexibility to enter into good faith negotiations with
the foundation prior to planting organic cotton to discuss indemnification
is also provided. As noted previously, and discussed in more detail in this
preamble, the sections addressing the eligibility requirements for indemnification
(§3.607) and the calculation of indemnity (§3.608) have been simultaneously
withdrawn and refiled as new sections in response to comments received on
the proposal. Although the department has proceeded to adopt new §§3.600
- 3.606 of Subchapter J, the adopted sections will have an effective date
of May 15, 2000, to allow the department to promulgate new §§3.607-3.609
relating to eligibility for indemnification, calculation of indemnification
and payment of assessment. Further, because the department believes that there
may be a need to revisit these rules after undergoing one season of experience
in their application, the department intends to review the rules again in
January of 2001 and to set public hearings on Subchapter J to take public
comment on whether or not changes should be made for the next growing season.
New § 3.601 is adopted with changes. The definition of "certified
organic crop" has been changed by adding the word "private" before the words
"certifying agent" for purposes of clarification and consistency with the
department's organic certification program, the same change has been made
to the definition of "transitional crop". The definition of "plow-up" has
been changed to require shredding or plowing of cotton in a manner which destroys
all hostable plants. This change is made based on a comment received from
cotton growers and the Texas Boll Weevil Eradication Foundation to assure
that hostable plants are not left in a field subjecting it to reinfestation
by boll weevils. The definition of "trap count" has been changed to provide
that traps are inspected on routine, rather than a weekly basis. This change
is made to allow for flexibility in inspections, and was also made in response
to a comment received on the proposal. New §3.602 is adopted with changes.
A phrase has been added to provide that this section will not impair rights
of parties to negotiate terms of indemnification, as allowed by this subchapter.
This phrase is added to provide more flexibility to the foundation and growers
to come to mutually acceptable terms where indemnification is appropriate
or required. New §3.603(a) is amended to make reference to a "registered
private certifying agent", to make this section consistent with §3.601.
In §3.603(b), the date for the department to notify organic producers
to report planting intentions to the foundation has been changed from January
1 to January 15 of each year based on a comment received. Section 3.604 has
been changed at subsection (b) by replacing the words "products not allowed
by the producer's certifying entity with the terms "prohibited materials".
This change makes the reference consistent with the department's organic certification
program rules. Subsection (d) of §3.604 has been changed by deleting
reference to the foundation's board of directors. The reference is deleted,
based on a comment received, to accurately reflect on whose behalf applications
are being made.
Section 3.605 has been changed at subsection (b) to clarify that trigger
levels are set by the foundation pursuant to §3.605(c). In addition,
subsection (b) has been changed to change the terms "first full season" to
"first season-long phase" of the eradication program. This change is made
to more accurately reflect the time at which trap count trigger levels are
set. Subsection (d) at paragraph (1) has been changed to provide that the
representative on the technical review committee from the Texas Agricultural
Extension Service office serving the respective area may be a designee of
the integrated pest management (IPM) specialist, rather than a county extension
agent. This change is made to clearly make the IPM specialist the designated
person on the committee, or in the event he or she cannot serve, give the
IPM specialist flexibility in designating someone else to represent the extension
service. Paragraph (d)(4) has been changed to provide that the technical review
committee shall make a recommendation within 48 hours after the field surpasses
the trap count trigger level. Paragraph (d)(5) has been changed to provide
that the commissioner shall make a final determination on action required
within one business day of receiving the committee's recommendation. The changes
to paragraphs (4) and (5) are made to assure that a decision on action required
will be made in a timely manner by the technical review committee and the
commissioner.
New §3.606 is adopted with changes. The time for a crop to be destroyed
before compensation will be denied as provided at subsection (c)(2), has been
changed from within 20 to within 14 days from the date of notification that
the crop must be destroyed or expiration of an approved extension. The time
after which the department may assess an administrative penalty for failure
to destroy a crop required to be destroyed has been changed from within 21
to within 15 calendar days after the date of notification or expiration of
any approved extension. The date after which a crop will be destroyed by the
department or its designee has been changed from the 21st day to the 15th
day after the date of notification or expiration of any approved extension.
The dates in subsection (c), paragraphs (1)-(4) have been changed to make
the timelines more accurately reflect the urgent need to get an infestation
under control once a destruction determination has been made, especially given
the time that has already lapsed since the infestation was discovered. In
summary, once a potential infestation problem is discovered, the field must
be inspected by a technical committee, options for action reviewed and destruction
recommended, the recommendation must then be reviewed by the commissioner
and destruction ordered, and then the grower will be notified to destroy.
The changes also make the timelines consistent with timelines already established
in the department's cotton stalk destruction program.
Comments were received from the following organizations: the International
Federation of Organic Agriculture Movements, Theley, Germany; the Pestizid
Aktions-Netwerk e.V. (PAN Germany); the Pesticides Trust, London; Florida
Certified Organic Growers and Consumers, Inc., Gainesville, Florida; the Texas
Organic Cotton Marketing Cooperative, O'Donnell, Texas; the Pesticide Action
Network, San Francisco, California; the Southern Mutual Help Association,
New Iberia, Louisiana; the Southern Sustainable Agriculture Working Group,
Elkins, Arkansas; the Texas Organic Growers' Association, Austin, Texas; the
Organic Consumers' Association, Duluth, Minnesota; the South Dakota Organic
Crop Improvement Association Chapter #1, Selby, South Dakota; the Organic
Trade Association, Greenfield, Massachusetts; the Northern Plains Sustainable
Agriculture Society. Comments from these organizations were generally in opposition
to the proposed rules. The comments generally centered on the compensation
for organic growers and the preservation of the organic cotton market. Additionally,
the comments generally addressed broad areas outside the scope of the proposal,
including the boll weevil eradication program as a whole and the general use
of pesticides.
Comments were also received from Plains Cotton Growers, Inc., Lubbock,
Texas; Lamesa Cotton Growers, Inc., Lamesa, Texas; the Permian Basin Boll
Weevil Eradication Zone Steering Committee, Ackerly, Texas; the Western High
Plains Boll Weevil Eradication Zone Steering Committee, Plains, Texas; the
Northwest Plains Boll Weevil Eradication Zone Steering Committee, Muleshoe,
Texas; and the Southern Rolling Plains Cotton Growers Association, Inc., San
Angelo, Texas. Comments from these organizations were generally in opposition
to the proposed rules. These comments also generally centered on the compensation
for organic growers. The Texas Boll Weevil Eradication Foundation Inc., (the
foundation) also commented generally in favor of the proposal and provided
some comments which were adopted by the department in the new rule, as previously
noted.
In addition to the receipt of many written comments from both traditional
and organic cotton growers, grower organizations, organizations otherwise
involved in the production of cotton in Texas and representatives of the affected
zone steering committees, the department also received many comments from
businesses both in Texas and out-of-state that buy and/or sell organic cotton
products or other organic products and individuals who use organic products.
The department also conducted three public hearings in Lubbock, Lamesa and
Muleshoe, Texas, which were attended by approximately 176 persons, primarily
traditional cotton growers.
In addition to the comments noted above and those which have been incorporated
into the new sections, the department received other comments on the proposal.
Specifically on the new sections, the following comments were submitted which
were not adopted by the department. In regards to §3.602(b), the foundation
suggested that since it is the burden of the organic producer to notify the
foundation of organic production in an active zone, consequences should be
imposed for failure to perform that duty, including ineligibility for any
type of indemnification or financial protection. The department disagrees
with this comment and believes that the consequences for failure to report
organic production are already clear.
In regards to §3.604(b), relating to Protection of Organic Certification,
a comment by Osama El-Lissy, former program director for the foundation, pointed
our that all aerial applications are done through contractors who are responsible
for the performance of all aerial applications and assume "the liability for
any property damage resulting from negligence, gross negligence, or strict
liability arising from the acts, wrongs, and omissions of the contractor".
In reference to that, Mr. El-Lissy suggests changing the language to read
"In the event the foundation or an employee of the foundation inadvertently
treats . . .". The department disagrees with the proposed language because
to only include employees of the foundation would not cover any contracted
labor, such as aerial applicators who make applications on behalf of the foundation.
Also, it is the department's understanding that the foundation would actually
be involved in coming to an agreement with a grower whose cotton has been
inadvertently sprayed, then the foundation may seek reimbursement from the
applicator's insurance company. To take the foundation out of the picture
on that part would require that growers deal directly with applicators' insurance
companies, which was not intended.
In regards to §3.605 (1), relating to the establishment of trap count
trigger levels, the foundation has suggested adding the words "based on the
foundation's experience" after "sound scientific and entomological considerations."
The foundation has also asked that the words "and shall be implemented in
a fair and equitable manner" be removed. It is the foundation's opinion that
this sentence will serve as "fodder for lawsuits", and the foundation contends
that no discretion is exercised in implementing trigger levels. Rather, if
the number of weevils in an area surpasses the trigger level, the field is
sprayed (if conventional) without discretion. The department disagrees with
the proposed change because it believes that the language "based on sound
scientific and entomological considerations" clearly and appropriately means
that the trap count trigger level will be set in an objective manner. The
department also believes that the language stating that the implementation
of a trigger level and placing of traps shall be in a fair and equitable manner
is also appropriate and is based on concerns of organic growers that the implementation
of the program in relation to organic cotton, as to what triggers action and
where traps are placed will not be implemented in a fair and equitable manner.
The department does agree with the foundation that the implementation of trigger
levels for either traditional or organic cotton should be based on objective,
scientific methods. In regards to subsection (d) relating to the technical
review committee, Mr. El-Lissy has suggested that the technical review committee
be eliminated in favor of a system that relies strictly on trap captures,
crop stage, and the progress of the eradication program. The department disagrees
with this comment and believes that the use of the technical review committee
process, with the level of expertise of its members and the direction provided
by the foundation's technical advisory committee, will go far to assure that
a thorough review of all factors relating to the need for action will be considered
before any destruction of organic cotton is required. In regards to subsection
(c), relating to the requirement that there be no destruction of cotton after
the field reaches the cut-out stage, many conventional cotton growers have
expressed the desire to remove this subsection completely. Mr. El- Lissy,
who initially agreed to the inclusion of this provision, commented that he
now believes this should not be applicable in the second and third season-long
years of the program. The department believes that the proposed language should
be adopted as proposed because several experienced entomologists, including
Mr. El-Lissy, have indicated that once a crop reaches cut-out stage, plowing
that crop does not significantly reduce its threat to the eradication effort.
Also, because the department has no actual experience to indicate that the
proposed language will create problems, it would be appropriate to leave this
provision in at this point and revisit the issue for the next growing season,
if necessary. In regards to §3.606 (b), relating to crop destruction
extensions, the Western High Plains, Permian Basin, and Northwest Plains grower
steering committees suggested that no extensions be allowed. The foundation
has suggested that extensions only be granted for delays caused by weather,
and that only one extension should be granted in each situation. The department
disagrees with those comments, and believes that the proposed language is
appropriate. This determination is made based on the department's experience
with a similar existing program for the its stalk destruction in established
pest management zones. In that program, the department has seen the need to
allow extensions in certain situations that are generally beyond the control
of the grower whose crop has been ordered to be destroyed. On subsection (c),
relating to penalties for not destroying a crop by the deadline, conventional
cotton growers in general, and the foundation, commented that the destruction
timeline is too long. Specifically, the foundation has suggested that the
second deadline of 20 days be changed to 10. Other comments from conventional
cotton growers included decreasing the initial deadline for an organic grower
to destroy a crop to three days and/or mandating that the grower lose the
rights to any indemnification after 10 days. While the department agrees with
growers and the foundation that the timeframes for destruction should be decreased,
the department believes that the proposed timelines would be too short to
allow a grower sufficient time to plowup a field on his or her own. The timeframes
that have been adopted in this section are based on timeframes established
by law and/or rule under the department's stalk destruction program. No comments
were received on proposed §3.609, and the department has adopted that
section without changes.
In addition to comments on specific sections, the department also received
some general comments which were not incorporated into the adopted rule. Organic
growers and their supporters requested that a guaranteed percentage of organic
cotton be allowed to grow, without being subject to destruction under the
rules. Comments state that this request was made in an effort to assure that
all of the organic cotton production in Texas is not destroyed, resulting
in a loss of markets for organic growers. The commenters point out that because
of certification requirements, an organic grower whose crop has been destroyed
or who is forced to treat in the same manner as conventional growers, could
lose certification for up to three years, which would have a devastating effect
on marketing efforts. The department believes that there is not a need for
the designation of a percentage of organic production. The adopted rules do
not prohibit the growth of organic cotton, nor do they require organic growers
to enter into agreements not to grow organic cotton. The department further
believes that the implementation of the technical review committee process
to determine what action should be taken when a certain trigger level is reached
will be fair and equitable and will result in destruction being required only
when absolutely necessary in order for the eradication program not to be jeopardized.
Another general comment made by or on behalf of organic growers is that
the foundation not be allowed to treat sensitive areas and that the foundation
be required to use alternative treatment methods in organic cotton fields
and incorporate integrated pest management (IPM) techniques into its eradication
plan. The comments noted that the use of IPM is required by law. It is the
department's belief that some of the comments received in this regard, in
particular comments received from individuals and business supporters of the
organic cotton industry, were generated by the mistaken impression that the
foundation would be conducting a blanket spray program which would basically
spray all areas within a zone, without regard to sensitive areas such as organic
fields, schools and residential areas. The department believes that the foundation
is already incorporating IPM techniques into its eradication plan and that
the foundation has an established protocol for program activities around sensitive
areas. The department does, however, strongly encourage the foundation to
continue its efforts to incorporate more IPM techniques into its eradication
plan as is possible, and to work closely with organic growers and other persons
residing in active eradication zones and persons responsible for schools or
other sensitive areas in or near treatment areas to assure that the threat
of drift is minimized.
In regards to sensitive areas, the foundation has on staff an environmental
department that is responsible for monitoring pesticide applications near
sensitive sites, working with complaints, and performing quality control on
field operations. A sensitive area is defined as any location adjacent to
or near cotton fields where offsite drift of program chemical is unacceptable.
This definition includes all organic fields. Once a site is deemed to be environmentally
sensitive, an environmental monitoring specialist (EMS) must be on hand at
the cotton field for any program-applied chemical application. Each zone has
at least one. This EMS is responsible for ensuring that there is no offsite
drift of program-applied chemical onto sensitive areas. The EMS accomplishes
this by monitoring weather conditions and setting out dye cards that are coated
with a white material that turns black when it comes into contact with oil-based
materials (such as malathion). The foundation provides a detailed manual to
all environmental monitoring specialists detailing the proper methods of weather
observation and the proper use of dye cards. The foundation also takes further
steps to minimize drift, including: instructing pilots to fly five feet above
canopy; discontinuing applications when the wind speed exceeds 10 mph; instructing
foundation ground observers to monitor wind speed and application height;
instructing ground observers to ensure that people are not working in or near
the field; keeping spray pressure at a minimum to produce a larger droplet
that minimizes drift but is still efficacious in killing the boll weevil;
and using ground equipment in areas where airplanes cannot safely be used.
In regards to use of IPM techniques, the definition of IPM provided in
the Texas Agriculture Code, §74.102(11), defines IPM as "the coordinated
use of pest and environmental information with available pest control methods,
including pesticides, natural predator controls, cultural farming practices,
and climatic conditions, to prevent unacceptable levels of pest damage by
the most economical means and with the least possible hazard to people, property,
and the environment." In addition to the use of chemical treatment for boll
weevil control, the foundation also utilizes cultural and mechanical controls
where possible. Cultural controls practiced by the foundation include having
coordinated uniform cotton planting and harvesting dates, as organized by
grower steering committees in each zone, assisting the department in enforcing
stalk destruction deadlines in areas where such deadlines have been established,
and providing an early plow-up rebate on a grower's assessment payment as
an incentive to destroy cotton stalks as soon as possible after harvest. Mechanical
controls include use of boll weevil traps to measure adult boll weevil population
densities and identify their locations and to remove those trapped from the
boll weevil population. In regards to the use of alternative methods of control,
although research and testing is ongoing, there is no current proved alternative
control method which can be used on a wide-scale to control boll weevil populations.
Efforts in the past have been in the form of research projects conducted for
or by the Texas A&M University System, Agricultural Extension Service
and the Agricultural Research Service Division of the United States Department
of Agriculture, centered around two primary methods, use of the boll weevil
bait stick (BWACT) and the Catolaccus grandis, a boll weevil parasite, and
success using those methods has been limited, in part due to availability
and cost. As noted previously, research and testing of alternative methods
of controlling boll weevil populations are ongoing. The department intends
to become more active both at the state level, working with the Texas Agricultural
Extension Service, and at the federal level, working with the United States
Department of Agriculture, to seek funding of research on viable, cost-effective
alternative methods to assist in organic production in Texas.
Another general proposal, which was proposed by Plains Cotton Growers to
be incorporated throughout the new sections and the department's organic certification
rules was a suggestion that the treatment of organic cotton fields with malathion
be allowed as part of emergency spray program. This suggestion was modeled
after language included in the recently proposed national organic production
standards. The proposal was an effort to address the concern by organic growers
that if their cotton is sprayed with malathion, that their certification would
be lost and to allow for the treatment of organic cotton in the same manner
as conventional cotton. The proposed national rule allows an organic grower
to maintain a field's certified status if a field is sprayed as part of an
emergency spray program, but the organic production from the sprayed field
may not be sold as organic. More specifically, the proposal requested that
the department's organic certification rules be changed to adopt the proposed
language found in the national rule and that similar changes be made to proposed
new §§3.600, 3.604(b) and (d), 3.605(d)(6), 3.606(a) and (d)(1),
and §3.608(b) and (d)(3). Organic growers believe that adopting this
proposal will cause them to lose their certification and if not that, would
result in a loss of markets where cotton having undergone any application
of pesticides will not be acceptable to buyers. The department disagrees that
the proposal should be adopted. Texas state law clearly prohibits the application
of pesticides to organic cotton, and the department has found no existing
federal law or rule which would preempt Texas law in this regard. Moreover,
Texas organic certification standards, known nationally and internationally
as being the strictest in the nation, would not allow cotton which has been
sprayed with malathion to maintain its organic certification. Finally, the
department is required by law to protect the organic certification program
and its markets, and, as pointed out by the organic growers, even if certification
were somehow maintained, some markets would be lost, and certainly the integrity
of the Texas organic certification program put at risk.
Upon review of the many comments received on §3.607, relating to eligibility
for indemnity, and §3.608, relating to calculation of indemnity, and
recognizing the apparent need to reconsider the eligibility and indemnification
provisions of the organic cotton regulations, the department has determined
that the proposal put forth on these sections should be withdrawn, and new
sections proposed. Both the notice of withdrawal of proposed §3.608 and
new proposed §3.608 have been filed for publication in this issue of
the
Texas Register
. Comments from organic
growers on §3.607 included that the rules for future zones should be
retroactive as a grower would have to have 1999 production to be eligible
for indemnification in a zone that passes this season, that a system be put
in place that allows current organic growers to expand eligible cotton acreage
in an active zone, and that base acreage be fully transferable. Conventional
growers have commented that an organic grower's base acreage should be based
strictly on a three year average, and 1999 plantings should not be an option.
Comments from organic cotton growers on §3.608, in regards to the timing
of payment of the indemnity included a request for an option to defer payment
until after January 1 for tax purposes, a request that the foundation be required
to establish an escrow account to secure the availability of payments, and
a request that there be a penalty in some amount assessed to the foundation
for late payment of an organic indemnity. In regards to the decision not to
plant organic cotton (and receive indemnity), traditional cotton growers commented
that an organic grower should be required to plant cotton in order to receive
an indemnity. In regards to payment factors, some conventional growers, and
the steering committees that commented, suggested that an organic APH be used
for yield calculation. Organic growers commented that this would not be an
accurate measurement on many farms and, overall organic cotton acreage would
likely be greater than using the 10-year APH yield.
The majority of comments received on the proposal related to §3.608
and the payment calculation, and ranged from conventional cotton growers and
their representatives who believe there should be no indemnification for organic
growers, to conventional growers who believe that indemnification is warranted
but the proposed payment is too high, to organic cotton growers and their
supporters who believe that the proposed indemnification formula provides
too little compensation, that they should be compensated for 100% of the value
of their crop, rather than the proposed 70%. Conventional cotton growers believe
that payment to organic growers will pose an unbearable strain on their already
tight zone budgets and will garner support for not continuing the program
in their zones. Organic growers believe that the proposed indemnification
formula will not cover their production costs and will result in their suffering
great financial loss. Some more specific suggestions included that the indemnification
be Acres x organic APH x (FCIC cotton rate + 10 cents) x 50% or that indemnification
be Acres x APH yield x 80 cents/pound x 50%. One other comment suggested that
the market price for organic cotton should be used each year. Comments were
also submitted regarding the statement of fiscal implications to organic growers
and how, in the commenters' opinions, the compensation formula proposed would
definitely have an adverse affect not only on growers, but on the persons
employed in the organic cotton industry in Texas, and businesses that count
on being supplied with organic cotton. In regards to indemnification after
eradication has been declared in a zone, organic growers commented that post-eradication
indemnity should be 100% of the value of the crop. Conventional grower representatives
suggested that only growers who had base acreage in an active eradication
program should be eligible for post-eradication indemnity. Comments were also
received indicating that there is consensus among all groups (except those
who wish to pay organic growers nothing) that a section should be added allowing
the foundation (through grower steering committees) and organic growers to
negotiate alternative arrangements.
Again, the department has withdrawn §§3.607 - 3.609 and filed
newly proposed §§3.607 - 3.609 taking into consideration comments
received and additional information regarding the operation of other federal
agricultural programs and information provided by both organic and conventional
growers in regard to average production and production costs. The department
intends to adopt a final rule at the end of the 30-day comment period.
New §§3.600 and 3.601 provide a statement of authority and purpose
for the subchapter and provide definitions to be used in the subchapter. New §3.602
provides that the decision to plant certified or transitional cotton in an
active eradication zone is up to the grower producing the crop. New §3.603
provides requirements for communication between organic growers, the department
and the Texas Boll Weevil Eradication Foundation. New §3.604 provides
for protection of organic certification and indemnification to growers when
an organic crop or field is inadvertently treated or exposed through drift
to products not allowed for treatment on an organic crop. New §3.605
establishes requirements and procedures for setting and monitoring boll weevil
trap count trigger levels. This section also provides for a review of fields
that surpass the established trigger level by a technical review committee
which will recommend to the Commissioner of Agriculture what eradication activity
may be necessary, including destruction of the cotton crop, if warranted.
New §3.606 provides procedures for notice and requests for extensions
in the event a grower is notified that destruction of a cotton crop is necessary.
This section also provides for the grower to choose conventional treatment
of a crop in lieu of destruction
The new sections are adopted under the Texas Agriculture Code
(the Code), §74.125, which provides the department with the authority
to develop rules and procedures to protect the eligibility of organic cotton
growers to be certified by the commissioner of agriculture, ensure that certification
by the commissioner meets national certification standards, and in all events
maintain the effectiveness of the boll weevil or pink bollworm eradication
program administered under the Code, Chapter 74, Subchapter D, including rules
that provide indemnification for organic cotton growers for reasonable losses
that result from a prohibition of production of organic cotton or from any
requirement of destruction of cotton; and the Code, §74.120, which provides
the department with the authority to adopt reasonable rules to carry out the
purposes of the Code, Chapter 74, Subchapter D.
§3.600. Statement of Purpose and Authority.
The Texas Agriculture Code (the Code), Chapter 74, Subchapter D, §74.1011
designates the Texas Boll Weevil Eradication Foundation, Inc. (the foundation)
as the entity to carry out boll weevil and pink bollworm eradication in Texas.
The Code, §74.120, provides the Commissioner of Agriculture with the
authority to adopt reasonable rules to carry out the purposes of Chapter 74,
Subchapter D. The Code, §74.125 provides that the Commissioner shall
adopt rules and procedures to protect the eligibility of certified organic
and transitional cotton production in active eradication zones while ensuring
the ultimate success of the boll weevil eradication program in Texas. Section
74.125 further provides that rules adopted under that section may provide
indemnity for the organic cotton growers for reasonable losses that result
from a prohibition of production of organic cotton or destruction of organic
cotton. Mitigation of losses with production of an alternative crop may be
required by the foundation board of directors. The foundation board may not
treat or require treatment of organic cotton with chemicals that are not allowed
for use on certified organic cotton. Plow-up of an organic cotton field may
be required as an alternative to treatment with chemicals.
§3.601. Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Active eradication zone -- A boll weevil eradication zone
established in accordance with the Texas Agriculture Code, Chapter 74, Subchapter
D, in which a referendum of cotton growers has been held and both the establishment
of an eradication program and a maximum assessment have been approved by growers
for that zone and eradication activities are in progress or the zone has been
declared eradicated by the commissioner.
(2)
Certified organic crop -- A crop which has undergone
independent third party verification by the department or a registered private
certifying agent that the crop has been produced in compliance with the Texas
Organic Standards, Chapter 18 of this title (relating to Organic Standards
and Certification), and qualified for full organic status, including the requirement
that the land on which the crop is grown has had no prohibited materials applied
for at least 36 months prior to harvest.
(3)
Commissioner -- The Commissioner of Agriculture or
her designee.
(4)
Department -- The Texas Department of Agriculture
(5)
Foundation -- The Texas Boll Weevil Eradication Foundation
(6)
Plow-up -- To shred or plow in a manner which destroys
all hostable plants.
(7)
Transitional crop -- A crop which has undergone independent
third party verification by the department or a registered private certifying
agent that the crop has been produced in compliance with the Texas Organic
Standards, Chapter 18 of this title, and fulfills all requirements except
the 36 months required for full organic status. A certified transitional organic
crop must be produced on land that has had no prohibited materials applied
for at least 12 months prior to harvest.
(8)
Trap count -- The number of boll weevils recorded
as captured in a pheromone trap as inspected on a routine basis by an employee
of the foundation.
(9)
Trigger levels -- Standards established by the foundation
for the number of weevils recorded in a trap or for the number of weevils
trapped per acre that would initiate further action by the foundation.
§3.602. Planting of Certified Organic or Transitional Cotton in Active Eradication Zones.
The decision on whether to plant certified organic or transitional
cotton in any field located in an active eradication zone will be made solely
by the grower producing the crop, subject to any designations of prohibited
growing areas under the Code, §74.118, and rules adopted thereunder.
Neither the foundation nor the department will urge or persuade, in any way,
a grower or growers to plant or not to plant certified organic or transitional
cotton. This provision shall not affect the rights of the parties to negotiate
in good faith pursuant to 3.607 of this title (relating to Eligibility for
Indemnification).
§3.603. Communication with Organic Producers; Notification of Organic Production.
(a)
Growers applying for or holding certified organic or transitional
organic certification with the department or a registered private certifying
agent and who intend to devote acres to organic or transitional crops must
submit all appropriate documentation to the department's Organic Certification
Program, in accordance with Chapter 18 of this title (relating to Organic
Standards and Certification), in order to be recognized by the foundation
as a certified organic or transitional grower for purposes of this section.
(b)
The department will contact all producers with certified
organic or transitional acreage in an active boll weevil eradication zone
before January 15 of each year by sending notice to the address on file with
the department's Organic Certification Program for the grower. These producers
will be informed that they should notify the foundation of their planting
intentions no later than the date of planting the crop. It is the responsibility
of the grower to inform the foundation of the location of all certified organic
or transitional production within an active boll weevil eradication zone.
(c)
The foundation will communicate with all growers of certified
organic or transitional crops in active eradication zones to discuss eradication
activities in and around the production of such crops and to plan measures
to minimize problems such as drift.
§3.604. Protection of Organic Certification.
(a)
The foundation will take steps reasonably necessary to
protect the certification of organic crops during the course of its normal
eradication activities.
(b)
In the event the foundation or an individual working for
the foundation inadvertently treats a certified organic or transitional field
or portion of a crop, either directly or through drift, with prohibited materials,
the foundation will indemnify the grower in accordance with subsection (d)
of this section. This indemnification will continue on an annual basis until
the earliest date that the exposed field or crop is eligible to return to
the status it held prior to the inadvertent treatment by the foundation.
(c)
For purposes of this section, a determination of whether
or not a direct treatment or drift occurred will be made by the department
in accordance with established procedures.
(d)
In the event of a confirmed case of direct treatment or
drift of chemical applied for or by the foundation, the grower will receive
just and reasonable compensation in an amount recommended by the foundation
board and approved by the commissioner.
§3.605. Trigger Levels.
(a)
During the first season of treatment in an active boll
weevil eradication zone, the "diapause" phase of the program, all organic
producers may plant certified organic or transitional cotton consistent with §3.602
of this title (relating to Planting of Certified Organic or Transitional Cotton
in Active Eradication Zones), without regard to boll weevil trap captures.
Producers will be required to communicate with the foundation as prescribed
in §3.603 of this title (relating to Communication with Organic Producers;
Notification of Organic Production).
(b)
Certified organic or transitional cotton fields in active
boll weevil eradication zones will adhere to the same trap count trigger levels
that are set by the foundation and pursuant to subsection (c) for conventional
cotton fields in that zone beginning in the first season-long phase of the
program and continuing each season thereafter.
(c)
Trap count triggers will be set under the following conditions.
(1)
The foundation will inform organic growers of the trigger
levels at the beginning of each season.
(2)
The trap count trigger level may change during the
season, and when these changes are made, the foundation will inform organic
growers at least 48 hours prior to implementing a new trap count trigger level.
(3)
Traps around organic cotton fields will be checked
at the same interval as traps around conventional fields in the same zone.
(4)
The establishment of the trap count trigger level
and placing of traps will be based on sound scientific and entomological considerations
and shall be implemented in a fair and equitable manner.
(d)
If an organic or transitional field surpasses the set
trap count trigger level, a technical review committee will determine if destruction
of that field or other alternative action should be required using the following
procedures.
(1)
This committee will consist of the foundation program
director or his designee, a member of the foundation's technical advisory
committee appointed by the commissioner, and an Integrated Pest Management
(IPM) specialist, or his designee, from the Texas Agricultural Extension Service
serving the respective area.
(2)
No less than two committee members will meet at the
field in question within 48 hours after the field surpasses the trap count
trigger level.
(3)
The committee will consider factors established by
the foundation's technical advisory committee and approved by the foundation's
board and the commissioner including, but not limited to, crop damage, trap
captures in nearby traps, and cost to the eradication program.
(4)
The technical review committee shall make a written
recommendation to the commissioner on the organic cotton field in question
specifying the recommended actions and justification for those actions. This
recommendation shall be made within 48 hours after the field surpasses the
trap count trigger level.
(5)
The commissioner shall review the technical review
committee's recommendation and make a final determination on the action required
within one business day of receiving the committee's recommendation.
(6)
Should the commissioner determine that some type
of eradication activity should occur, the grower may be required to either
destroy the crop as prescribed in §3.606 of this title (relating to Crop
Destruction), or may choose to allow the crop to be treated .
(e)
Destruction of an organic cotton crop under this section
will not be required, regardless of trap captures, once the crop in that field
has reached cut-out stage for that season. This stage will be determined through
the following process.
(1)
For purposes of this section, "cut-out stage" is defined
as at least 50% of cotton plants in a field having four or fewer nodes above
white flower.
(2)
The grower will contact the foundation when they
believe their crop has reached cut-out stage;
(3)
A foundation representative will inspect the field
within 48 hours after being contacted by the grower to confirm that it has
reached cut-out stage.
(4)
If there is a dispute relating to the stage of the
crop, the IPM agent/specialist or county extension agent serving the area,
will inspect the crop and determine if cut-out stage has been reached.
(5)
The foundation will notify the department when it
is determined that a field has reached cut-out stage.
§3.606. Crop Destruction; Extensions, Choice of Conventional Treatment.
(a)
Crop destruction. A grower who has been notified that
destruction of their organic cotton crop is necessary will have no more than
seven calendar days from the date of receipt of notification to destroy that
crop by plow-up.
(b)
Extension requests. A request for a deadline extension
will be handled as follows.
(1)
The department may, on written request by a grower, grant
an extension of the destruction deadline. Request for extensions may be granted
for the following reasons:
(A)
weather factors;
(B)
illness;
(C)
mechanical failure; or
(D)
other good cause, as determined by the department.
(2)
A written request for an extension of the destruction
deadline must be submitted on a form prescribed by the department.
(3)
Request forms may be obtained from either the department
or the foundation.
(4)
Failure to complete the form in its entirety may
result in denial of the request.
(5)
All requests for extensions shall be postmarked on
or prior to the destruction deadline
(c)
Penalties for not destroying a crop by the deadline.
(1)
If the crop is not destroyed within seven calendar days
of the date of notification or expiration of an approved extension, the compensation
the grower is entitled to under §3.608 of this title (relating to Calculation
of Indemnity), for that acreage will be decreased by 50%.
(2)
If the crop is not destroyed within 14 calendar days
of the date of notification or expiration of an approved extension, the grower
will no longer be entitled to compensation under §3.608 of this title,
for that acreage.
(3)
The department may assess an administrative penalty
of not more than $5,000 per day if the crop is not destroyed within 15 calendar
days after the date of notification or expiration of an approved extension.
(4)
If the crop is not destroyed by the 15th day after
the date of notification or expiration of an approved extension, the department
or its designee may destroy the crop.
(d)
Choosing conventional treatment.
(1)
In lieu of crop destruction, a grower may notify the foundation
and the department that he or she chooses to cancel his or her organic or
transitional certification on the acreage that has been ordered to be destroyed
so that conventional treatment may be used.
(2)
Such notification must be provided in writing to
both the foundation and the department and must be postmarked, if sent by
mail, or faxed before the destruction deadline. The same penalties described
in subsection (c) will apply if notification is not received by the destruction
deadline.
(3)
After both the foundation and the department receive
this notification, the Foundation will treat the field in the same manner
as all conventional cotton fields in the same zone.
(4)
A grower choosing to cancel organic certification
will not be entitled to compensation under §3.608 of this title, for
that acreage.
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 March 27, 2000.
TRD-200002208
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: May 15, 2000
Proposal publication date: February 11, 2000
For further information, please call: (512) 463-4075
Subchapter G. GO TEXAN PARTNER PROGRAM RULES
Subchapter B. DEVICES
Subchapter E. LICENSED SERVICE COMPANIES
Subchapter F. LICENSED INSPECTION COMPANIES
Chapter 3.
BOLL WEEVIL ERADICATION PROGRAM
Chapter 17.
MARKETING AND PROMOTION DIVISION