TITLE 4.AGRICULTURE

Part 1. TEXAS DEPARTMENT OF AGRICULTURE

The Texas Department of Agriculture (the department) adopts new Chapter 1, Subchapter E, §1.209, concerning the Wine Industry Development Advisory Committee, without changes to the proposal published in the March 10, 2006, issue of the Texas Register (31 TexReg 1543). New §1.209 adds the Wine Industry Development Advisory Committee to the list of the department's advisory committees, in accordance with the Texas Government Code, §2110.005.

No comments were received on the proposal.

New §1.209 is adopted 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; and the Texas Agriculture Code, §50B.002 which authorizes the Commissioner of Agriculture to appoint a Wine Industry Development Advisory Committee.

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 April 13, 2006.

TRD-200602140

Dolores Alvarado Hibbs

Deputy General Counsel

Texas Department of Agriculture

Effective date: May 3, 2006

Proposal publication date: March 10, 2006

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

Chapter 3. BOLL WEEVIL ERADICATION PROGRAM

Subchapter F. GENERAL PROCEDURES

4 TAC §3.205

The Texas Department of Agriculture (the department) adopts new Chapter 3, Subchapter F, §3.205, concerning procedures for requests for administrative review under Texas Agriculture Code (Code), §74.1095, with changes to the proposal published in the February 24, 2006, issue of the Texas Register (31 TexReg 1130).

The new section is adopted to establish procedures and remedies for the processing of request for review submitted to the department under the Code regarding actions of the Texas Boll Weevil Eradication Foundation (Foundation). The new section provides filing requirements, a review and appeal process, actions covered by the section and available remedies.

Comments were received on the proposal from the Foundation. The Foundation submitted comments generally in favor of the proposal, and also requested that the Foundation be given a similar right of appeal of a General Counsel determination to the Commissioner of Agriculture as is given to the party requesting review. The department believes that the right of appeal given in §74.1095 is not limited to the party requesting review, and therefore, accepts the Foundation's comment. Subsection (d) Appeal to Commissioner is accordingly adopted with changes to reflect the Foundation's request.

The new section is adopted under the Texas Agriculture Code (the Code), §74.1095, which provides the department with the authority to establish by rule procedures necessary for the administration of the administrative review process.

§3.205.Administrative Review.

(a) Filing of request.

(1) Any person who believes they have been aggrieved in connection with an action of the Texas Boll Weevil Eradication Foundation (the foundation) may file a request for administrative review by the Texas Department of Agriculture (the department) under the Texas Agriculture Code, §74.1095 (§74.1095).

(2) A request must be in writing and received by the department within 90 days after the action of which the person is complaining occurred. Formal requests must comply with the following requirements, and shall be resolved in accordance with the procedure set forth below. Copies of the request and any supporting documentation must be mailed or delivered by the requesting party to the department and the foundation.

(b) Contents of request. A request filed under this section must be sworn and contain:

(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection, including an identification of the issue or issues to be resolved;

(3) a precise statement of the relevant facts;

(4) argument and authorities in support of the allegations made;

(5) any supporting documentation available; and

(6) a statement that a copy of the request has been mailed or delivered to the foundation.

(1) Once a request is received by the department, it shall be forwarded to the Office of General Counsel for review.

(2) The General Counsel, or his or her designee, shall have the authority, prior to appeal to the commissioner or her designee, to settle and resolve the complaint that is the subject of the request, and may solicit additional information regarding the matters alleged in the request for review from the requester, the foundation, or any other relevant party. Copies of any additional information received shall be provided to both the requester and the foundation.

(3) If the issues raised in the request are not resolved by mutual agreement, the General Counsel will issue a written determination on the request for review as follows.

(A) If the General Counsel determines that no violation of rules or statutes has occurred, he or she shall so inform the requesting party and the foundation by letter, setting forth the reasons for the determination.

(B) If the General Counsel determines that a violation of the rules or statutes has occurred, he or she shall so inform the requesting party and the foundation by letter, setting forth the reasons for the determination and the appropriate remedial action.

(4) If the General Counsel's determination is not appealed, that determination shall serve as the final agency determination on the complaint.

(d) Appeal to Commissioner.

(1) The General Counsel's determination on a complaint may be appealed to the Commissioner by the requester, or his or her designee, or the Foundation. An appeal of the General Counsel's determination must be in writing and must be received by the department no later than 15 days after the date of the General Counsel's determination. The appeal shall include specific reasons why the requester or the Foundation disagrees with the General Counsel's determination. Copies of the appeal must be mailed or delivered by the party appealing to the other party.

(2) The Commissioner, or his or her designee, shall review the request, any supporting documentation, the General Counsel's determination, and the appeal and issue a determination on the request. The appeal shall be limited to review of the General Counsel's determination and documentation presented by parties in support of their positions.

(3) The Commissioner's determination of the appeal shall be the final administrative action of the agency and is subject to judicial review under Chapter 2001, Government Code.

(e) Actions Subject to Review.

(1) Request for Review filed under §74.1095 shall be based on actions taken by the foundation under the Texas Agriculture Code, Chapter 74, Subchapter D.

(2) Actions subject to review under §74.1095 do not include:

(A) alleged violations that may be prosecuted administratively by the department under the Texas Agriculture Code, §12.020 and/or §76.1555;

(B) bid protests and other disputes arising from a bid made or a contract entered into with the foundation under its procurement manual, and covered by the foundation's procurement dispute resolution procedure; or

(f) Appropriate remedial actions. If the department, or the Commissioner on appeal, determines that the foundation acted in a manner that warrants action by the department, the department may prescribe corrective action to be carried out by the foundation, or refer its determination to the appropriate entity in accordance with the Texas Agriculture Code, §74.126. The department is not authorized to award monetary damages to a person filing a request under this section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 11, 2006.

TRD-200602090

Dolores Alvarado Hibbs

Deputy General Counsel

Texas Department of Agriculture

Effective date: May 1, 2006

Proposal publication date: February 24, 2006

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

Chapter 21. CITRUS

Subchapter A. CITRUS QUARANTINES

4 TAC §21.5, §21.6

The Texas Department of Agriculture (the department) adopts amendments to §21.5 and §21.6, concerning citrus quarantines, without changes to the proposal published in the March 10, 2006, issue of the Texas Register (31 TexReg 1543). The amendments are adopted to clarify requirements related to citrus quarantines and citrus budwood and to provide procedures whereby properly tested budwood from any state may be imported into Texas.

The amendment to §21.5 specifies plant genera that are considered quarantined articles. Amendments to §21.6 increases clarity and provides procedures for the importation of properly tested budwood from any state into Texas. Previously such procedures were available only for budwood from California or Florida. These amendments provide the citrus industry and other citrus growers in Texas a means for obtaining access to a larger citrus budwood selection that is free from pests and diseases.

No comments were received on the proposal.

The amendments to §21.5 and §21.6 are adopted under the Texas Agriculture Code (the Code), §71.007 and 71.0091, which provides the department with the authority to adopt rules as necessary for the seizure, treatment, and destruction of citrus plants, plant products, and other substances for the effective enforcement and administration of Chapter 71; and the Code, §73.002 which provides for the state to use all constitutional measures to protect the citrus industry from destruction by pests and diseases.

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 April 13, 2006.

TRD-200602133

Dolores Alvarado Hibbs

Deputy General Counsel

Texas Department of Agriculture

Effective date: May 3, 2006

Proposal publication date: March 10, 2006

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

Chapter 29. ECONOMIC DEVELOPMENT

Subchapter C. TEXAS CERTIFIED RETIREMENT COMMUNITY PROGRAM

4 TAC §§29.50 - 29.56

The Texas Department of Agriculture (the department) adopts new Chapter 29, Subchapter C, §§29.50 - 29.56, concerning the department's Texas Certified Retirement Community Program rules. Section 29.50 is adopted with changes to delete duplicate language and §§29.51 - 29.53 are adopted with changes based on comments received from the Office of Community Rural Affairs to the proposal published in the February 24, 2006, issue of the Texas Register (31 TexReg 1132). Sections 29.54 - 29.56 are adopted without changes and will not be republished. The new sections are adopted to establish the Texas Certified Retirement Community Program, a program designed to encourage retirees and potential retirees to make their homes in Texas communities that have met the criteria for certification by the department as a Texas certified retirement community. The program will provide an increase in economic activity in Texas communities by providing communities with another tool to market and promote themselves as a desirable retirement destination to retirees and potential retirees both in and outside Texas.

New §29.50 provides definitions to be used in the new subchapter. Proposed new §29.51 provides an overview of the program. New §29.52 provides for the contents of an application and fees for the program. New §29.53 provides the application and selection process for the program. New §29.54 provides for assistance for certified communities in the program. New §29.55 provides requirements for the use of the words Texas Certified Retirement Community or other department registered trademarks that are used in the program. New §29.56 provides for the expiration of certification and renewal of certification in the program.

Comments on the proposal were received from the Nacogdoches County Chamber of Commerce, the East Texas Council of Governments, the Office of Rural Community Affairs (ORCA), and the Texas Governor's Committee on People with Disabilities.

Mr. Bruce Partain submitted comments on behalf of the Nacogdoches County Chamber of Commerce, as its President/CEO. Mr. Partain suggested that the rules include a reference to economic development, defined by Mr. Partain as financial services and retail business. After careful consideration of Mr. Partain's recommendation, department staff has determined that his recommended references are more appropriate for inclusion in the program guidelines as information that may be useful for a community to provide for consideration as part of its application. It is the department's hope that a community applying for certification will include any information that supports its position as a good location for retirement. This information may include details about the economic opportunities the community has available for personal finance and retail business.

Mr. Glynn Knight, Executive Director of the East Texas Council of Governments, submitted comments on its behalf. Mr. Knight commented that while, overall, the program procedures appear workable, the application fee for the certification is excessive. The department has no authority to adjust the program application fee. The fee was created by law and cannot be changed by department rule. Mr. Knight next suggested that the application process take into consideration the size of the community applying. The department agrees with this comment and is already taking community population into consideration in the application/scoring process. Mr. Knight also suggested that a community that has already received a retirement certification designation from another source be "grandfathered" into the state program at the department. Grandfathering was not addressed nor, we believe contemplated, in the law establishing the program and was, therefore, not included in the proposed rules. Mr. Knight stated he thought it was appropriate for local Councils Of Government (COGS) to be included in the program process. The department agrees that including the COGs in the process is important to the department and the local communities and intends to include contact information on each of the COGs in the program guidelines. The final comment made by Mr. Knight had to do with the fiscal note. Mr. Knight suggested that the fiscal note did not adequately address the financial implications the application process has on a community applying for certification. Department staff feels this concern was adequately addressed in the fiscal note which states "the cost to applicants to the Program will be an application fee which is the greater of $5,000.00 or $0.25 multiplied by the population of the community as determined by the most recent United States census". Any additional cost incidental to preparing and gathering information for the application will in most cases be minor when compared to the application fee. Also, unlike a mandatory regulatory fee which may be imposed by an agency on a local government, the preparation of an application and payment of an application fee for this program is voluntary.

Mr. Eric Beverly submitted comments on behalf of the Office of Rural Community Affairs (ORCA). Mr. Beverly suggested adding the Rural Viability Index in the language in §29.52(a)(4) of the rules. The department agrees that the index is an excellent resource tool and will consider adding the Rural Viability Index to the program guidelines. Mr. Beverly also suggested that a time period for refund of the application fee in §29.52(c) may or may not be needed. The department has determined that a refund timeline would not add to the efficient operation of the program and therefore, none will be added to the adopted rule. Mr. Beverly, in his third and final comment, recommended changing the wording in §29.53(7) from "within 75 days of the date of the initial application" to "within 75 days of the date of receipt of the completed application". The department agrees that changing the wording better describes how the process will work and will include the change in the adopted rule.

The department received several comments from the Texas Governor's Committee on People with Disabilities (Committee). Comments were submitted by Pat Pound, Executive Director of the Committee. In §29.51(3) of the proposed rules, the Committee recommended that the reference to "life-care communities" be changed to "long term living communities". The change was recommended due to a change in the terminology used by community and service providers for retirees. The department agrees with the recommended change and has changed the adopted rule accordingly. In §29.52 of the proposed rules, the Committee proposed the addition of 17 items to include: information about the elderly and disabled homestead exemption; designate availability of accessible housing and accessible housing features, if known; designate costs of electricity and water; indicate the availability of high-speed internet services; designate any local ordinances for the protection of people with disabilities; designate pedestrian friendly elements such as, sidewalks, curb cuts, audible pedestrian signals, etc.; describe telework opportunities; describe local business efforts to make reasonable accommodations for people with disabilities; include information on availability of long-term services and supports (both community and residential services and supports); availability of emergency medical services and the name and location of any (all) hospitals within a 75 mile radius of the community; denote whether emergency services such as fire departments and EMS are voluntary or paid staff; designate the number of physicians that accept Medicaid and Medicare; indicate efforts of local pharmacy's to work with Medicare Drug plan and prescription bottles readable by persons with low vision; recommend public transportation and highways; indicate availability of cable/dish television; specify accessible parks and trails and accessible golf courses and swimming pools; designate any community elements that are "liveable" for people with disabilities. The department agrees that these items are things that could be important to a retiree seeking a community in which to retire. The department believes that the items are more specific than the rules are intended to be, but would be a good addition for the guidelines. The department also recognizes that many retirees researching for a long term living community may want the assistance of the knowledgeable staff from the Texas Governor's Committee on People with Disabilities and will include the Committee in the guidelines as a resource.

The final two suggestions by the Committee include the addition to the application a field that denotes the number of facilities certified as accessible by the Texas Department of Licensing and Regulations and that the community inform anyone considering a move to Texas that the State does not supplement Social Security Income (SSI). The department agrees that this information may be useful to some retirees and will consider addressing these two recommendations in the guidelines.

New §§29.50 - 29.56 are adopted under the Texas Agriculture Code (the Code), §12.016, which authorizes the department to adopt rules to administer its duties under the Code; and §12.039, as added by House Bill, 1982, 79th Regular Session, 2005, which authorizes the department to establish and maintain a Texas Certified Retirement Community Program.

§29.50.Definitions.

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

(1) Applicant--A unit of general local government which is preparing to submit or has submitted an application for Texas Certified Retirement Community Program to the Texas Department of Agriculture (TDA).

(2) Application--Written request for certification under the Texas Certified Retirement Community Program in the format required by the department.

(3) Commissioner--The commissioner of agriculture of the State of Texas or the commissioner's designee.

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

(5) Guidelines--Guidelines promulgated by the department for completing the application for the Program and administration of the program.

(6) Local government--An entity defined as a unit of general local government in 42 United States Code, §5302(a)(1).

(7) Program--The Texas Certified Retirement Community Program.

(8) Sponsor--A board, organization or panel designated in the application by the applicant to serve as the community's primary contact regarding all aspects of the Program.

(9) Staff--Staff of the department.

§29.51.Overview of Program.

(a) The Texas Certified Retirement Community Program is established to:

(1) promote Texas as a retirement destination to retirees and potential retirees both in and outside Texas;

(2) assist Texas communities in their efforts to market themselves as desirable retirement locations and to develop communities that retirees would find attractive for a retirement lifestyle;

(3) assist in the development of retirement communities and long term living communities for economic development purposes and as a means of providing a potential workforce and enriching Texas communities; and

(4) encourage tourism to Texas in reference to an evaluation of this state as a desirable retirement location and for the visitation of those who have chosen to retire in this state.

(b) An applicant community must be a unit of general local government.

(c) The applicant must designate a sponsor that will be responsible for working with the department during the application process and will serve as the primary contact for disseminating information to potential retirees through the Program if the certification is approved. The sponsor should be a recognizable entity within the community, have a physical location with regular office hours, and should have the capacity and resources to manage the community's retirement recruitment efforts.

(d) After approval, a Texas Certified Retirement Community may change the sponsor by notifying the department in writing.

§29.52.Contents of Application; Fees.

(a) Applications must include:

(1) A completed score sheet as provided in the Program Guidelines;

(2) A completed retiree desirability assessment to include the following information regarding the applicant community:

(A) information on the applicant's demographics, geography and climate;

(B) Texas state and local tax structure;

(D) climate;

(E) personal safety or security;

(F) employment opportunities;

(G) availability of health care services and other services along the continuum of care, including home-based and community-based services, housing for the elderly, assisted living, personal care, and nursing care facilities;

(H) availability of emergency medical services and the name and location of any hospital within a 75-mile radius of the community

(I) public transportation and major highways;

(J) continuing education;

(K) leisure living;

(L) recreation areas and facilities;

(M) the performing arts;

(N) festivals and events;

(O) sports at all levels;

(P) crime statistics;

(Q) any other information that the department may reasonably request.

(3) evidence of support from area churches, clubs, businesses, media, and other entities, as necessary for the success of the program in the community;

(4) a marketing plan detailing the Program's mission as applied to the community, the target market, the competition, an analysis of the community's strengths, weaknesses, opportunities and dangers, and the strategies the community will employ to attain the goals of the Program;

(5) a long-term plan outlining the steps the community will undertake to maintain its desirability as a destination for retirees, including an outline of plans to correct any facility and service deficiencies identified in the retiree desirability assessment; and

(6) any other information as required by the Program Guidelines.

(b) An application fee must be submitted with the application in an amount equal to the greater of:

(1) $5,000; or

(2) $0.25 multiplied by the population of the community, as determined by the most recent census.

(d) Program guidelines and applications are available on the agency website: www.agr.state.tx.us or from: Texas Department of Agriculture, Rural Economic Development Division, P.O. Box 12847, Austin, Texas 78711.

§29.53.Application/Selection Process.

The application and selection procedures consist of the following steps:

(1) Each applicant community must submit a complete application to the department's Rural Economic Development Division. No changes to the application will be allowed after the application is submitted, unless they are a result of Staff recommendations. Applications are available from the department. Completed applications must be submitted to: Texas Department of Agriculture, Rural Economic Development Division, P.O. Box 12847, Austin, Texas 78711.

(2) Each application must be accompanied by the application fee, as described in Sec. 29.52(b) of this title (relating to Contents of Application; Fee).

(3) Staff will score the applications and review the applications for eligibility and completeness.

(4) The applicant will be notified of any deficiencies and given 20 days to rectify deficiencies. Staff may work with the applicant to improve or modify the application, with the intent of helping the applicant achieve certification. An application containing an excessive number of deficiencies, or deficiencies of a material nature will be determined incomplete and may not be considered for certification.

(5) An application that has been withdrawn either by the applicant or by the department, or has been declined may be resubmitted, however, a full application fee must be remitted with each application.

(6) After the scoring and application process is complete, Staff will make a recommendation for approval or denial of the request for certification to the commissioner or his/her designee. The commissioner will make the final decision regarding certification.

(7) The department will notify the applicant of approval or denial of the application within 75 days of the date of receipt of the completed application.

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 April 13, 2006.

TRD-200602129

Dolores Alvarado Hibbs

Deputy General Counsel

Texas Department of Agriculture

Effective date: May 3, 2006

Proposal publication date: February 24, 2006

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