Part 1. TEXAS DEPARTMENT OF AGRICULTURE
Chapter 29. ECONOMIC DEVELOPMENT
The Texas Department of Agriculture (the department) proposes the repeal of Chapter 29, Subchapter B, §§29.20 - 29.25 and 29.30 - 29.32, concerning the department's Texas Yes! Program rules, and the addition of new Chapter 29, Subchapter B, §§29.20 - 29.33, providing for the new GO TEXAN Rural Community Program (the Program) and use of the GO TEXAN certification mark in conjunction with this Program. The department is repealing the Texas Yes! Program rules in order to establish a similar, new program to support and promote Texas' rural communities. The department has a highly successful GO TEXAN certification mark (the mark) used to designate Texas products and certified retirement communities and the department will utilize a like certification mark for rural communities who meet specific eligibility requirements to capitalize on the name recognition associated with that mark. New §29.20 states the purpose of the Program. New §29.21 provides the Program's definitions as used in the new rules. New §29.22 provides for the department's administration of the program. New §29.23 provides the eligibility and application requirements for becoming a certified member of the Program. New §29.24 provides the eligibility and application requirements for becoming an associate member in the Program. New §29.25 provides the process for submission and review of applications and new §29.26 explains how an application determination can be appealed. New §29.27 provides the reasons for which an application may be denied. New §29.28 provides for the registration of those applicants who are approved to use the Mark and new §29.29 provides guidelines for use of the Mark, generally. New §29.30 provides for the termination or revocation for a license to use the Mark. New §29.31 describes the benefits of membership available to each certified or associate members. New §29.32 provides the membership expiration timeline and membership renewal guidelines. New §29.33 provides for the continued use of the "Texas Yes!" beyond the termination date of the program rules.
Rick Rhodes, assistant commissioner for rural economic development, has determined that for the first five-year period the proposed amended are in effect there will be no fiscal implications for state or local government as a result of administering or enforcing the new sections.
Mr. Rhodes has also determined that for each year of the first five years the proposed amended sections are in effect, the public benefit anticipated as a result of administering and enforcing the amended sections will be an increase in economic activity in rural Texas communities due to the name recognition of the GO TEXAN certification mark, by providing communities with a more effective tool to market and promote themselves as a desirable rural community or travel destination. There will be no cost to micro-businesses or small businesses, since eligibility for the certified membership in the Program is limited to units of local government. Businesses are eligible to apply for associate membership in the Program, and may incur minimal costs to apply. There will be no application fee.
Comments may be submitted to Rick Rhodes, Assistant Commissioner for Rural Economic Development, P. O. Box 12847, Austin, Texas 78711. Comments must be receive no later that 30 days from the date of publication of the proposal in the Texas Register.
Subchapter B. "TEXAS YES!" PROGRAM RULES
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §§29.20 - 29.25 is proposed under the Texas Agriculture Code (the Code), §12.016, which authorizes the department to adopt rules to administer its duties under the Code; and §12.027, which authorizes the department to establish and maintain an economic development program.
The code that will be affected by this proposal is the Texas Agriculture Code, Chapter 12.
§29.20.Statement of Purpose.
§29.21.Definitions.
§29.22.Administration.
§29.23.Eligibility for Community, Business and Associate Membership.
§29.24.Application for "Texas Yes!" Membership.
§29.25.Benefits of "Texas Yes!" Membership.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 4, 2008.
TRD-200801289
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 20, 2008
For further information, please call: (512) 463-4075
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §29.30 - 29.32 is proposed under the Texas Agriculture Code (the Code), §12.016, which authorizes the department to adopt rules to administer its duties under the Code; and §12.027, which authorizes the department to establish and maintain an economic development program.
The code that will be affected by this proposal is the Texas Agriculture Code, Chapter 12.
§29.30.Use of the "Texas Yes!" Mark.
§29.31.Termination of License to use the "Texas Yes!" Mark.
§29.32.Registration of Those Entitled to Use the "Texas Yes!" Mark.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 4, 2008.
TRD-200801290
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 20, 2008
For further information, please call: (512) 463-4075
New §§29.20 - 29.33 are proposed under the Texas Agriculture Code (the Code), §12.016, which authorizes the department to adopt rules to administer its duties under the Code; and §12.027, which authorizes the department to establish and maintain an economic development program.
The code that will be affected by this proposal is the Texas Agriculture Code, Chapter 12.
§29.20.Statement of Purpose.
The GO TEXAN Rural Community program is designed to support and increase economic activity and businesses in rural Texas communities.
§29.21.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 person submitting application for GO TEXAN Rural Community certified membership or associate membership.
(2) Application--Written request for GO TEXAN Rural Community certified membership or associate membership in the format required by the department.
(3) Associate member--A person who wishes to support rural communities in Texas and who is granted limited GO TEXAN Rural Community membership and limited rights to use the mark to support a rural community eligible to apply for a GO TEXAN Rural Community certified membership.
(4) Certified member--Any community that is granted a GO TEXAN Rural Community certified membership and is either a non-metropolitan county, or a Texas city with a population of less than 20,000 that does not adjoin another city or group of cities with an aggregate population of 50,000 or more and actively engages in community improvement as set forth in §29.23(b) and (c) of this title (relating to Eligibility for Certified Membership; Associate).
(5) Commissioner--The Commissioner of the Texas Department of Agriculture.
(6) Department--The Texas Department of Agriculture.
(7) Guidelines--Guidelines promulgated by the department for completing the application for the program and administration of the program.
(8) Licensee--An applicant approved for GO TEXAN Rural Community certified or associate membership and authorized to use the GO TEXAN Mark.
(9) Mark--The GO TEXAN certification mark, consisting of "GO TEXAN" and Design. The mark is pending final registration approval with the United States Patent and Trademark Office.
(10) Non-metropolitan county--A Texas county that is not located in or does not encompass a metropolitan statistical area, as identified by the U.S. Census.
(11) Person--An individual, firm, partnership, corporation, governmental entity, cooperative organization, or association of individuals.
(12) Program--The GO TEXAN Rural Community Program.
§29.22.Administration.
The department's responsibilities under this subchapter are as follows.
(1) The department shall develop a general promotional campaign for rural Texas communities.
(2) Department staff shall review applications for membership eligibility.
(3) The department may accept gifts, grants, donations, or other funding from state and federal governmental entities to be used for purposes of administering this chapter.
(4) Department staff shall establish guidelines on advertising or promotional activities for certified members and associate members that use the mark.
§29.23.Eligibility for Certified Membership; Application.
(a) Any non-metropolitan county, or any Texas city with a population of less than 20,000 that does not adjoin another city or group of cities with an aggregate population of 50,000 or more, is eligible for GO TEXAN Rural Community certified membership.
(b) An application for certification must include the following:
(1) an overview of applicant's community, including demographics and geography, and to the extent applicable the applicant community's:
(A) major employers;
(B) major highways;
(C) continuing education; and
(D) recreational areas and facilities.
(2) The type of community improvement performed and the applicant's mission and goals as they relate to:
(A) community development;
(B) economic development;
(C) tourism;
(D) cultural or historical heritage preservation; or
(E) strategic planning related to subparagraphs (2)(A) - (D) of this subsection.
(3) Information on an activity, event, festival or project (either recent or planned) that addresses the applicant's strategy to accomplish its mission and goals.
(c) The department has the sole authority to determine whether a community is eligible for a GO TEXAN Rural Community certified membership.
§29.24.Eligibility for Associate Membership; Application.
(a) The GO TEXAN Rural Community Program associate membership is established to provide membership to allow persons/entities interested in assisting the department with the promotion and implementation of the GO TEXAN Rural Community program use of the mark only on promotional items that meet standards and rules, as developed by the department.
(b) Any of the following types of entities are eligible for GO TEXAN Rural Community associate membership:
(1) A person that wishes to support a rural community that would be eligible to apply under §29.23 of this title (relating to Eligibility for Certified Membership; Application); or
(2) A sole proprietor, partnership, cooperative organization or corporation, whose principal place of business is in Texas and who has a business location in:
(A) A non-metropolitan county as defined in §29.21(10) of this title (relating to Definitions);
(B) An unincorporated area; or
(C) A Texas city with a population of less than 20,000 that does not adjoin another city or group of cities with an aggregate population of 50,000 or more; or
(3) An economic development corporation, chamber of commerce, visitors bureau or other similar entity that supports a rural community that would be eligible to apply under §29.23 of this title.
(c) Application for associate membership shall be made in accordance with this section, and in the same manner as provided in §29.23 of this title. The application must include information identifying the rural community the applicant supports and information on how the applicant supports the rural community.
(d) Eligible entities, interested in assisting the department with the promotion and implementation of the GO TEXAN Rural Community program may apply for GO TEXAN Rural Community associate membership.
(e) The following limited use restrictions shall apply to an associate member's use of the mark.
(1) Licensee shall only use the mark for the limited purpose stated in the license agreement. Use of the mark by associate members is limited and use is subject to department rules.
(2) Licensee shall be granted a limited, non-exclusive license to use the mark solely in conjunction with the reproduction, display, advertisement and promotion for which licensee has applied, within the United States, on the date(s) which licensee specified in the application.
(3) Licensee, upon request by the department, shall furnish a sample of any material bearing the mark, including but not limited to all advertising, promotional, and display materials, at no charge, for the department's written approval prior to any use thereof.
(4) At the direction of the department, Licensee shall affix on all items utilized in the licensed use, appropriate legal notices, as follows: "GO TEXAN and Design is a certification mark of, and is used under license from, the Texas Department of Agriculture".
(5) Licensee's license to use shall not be construed to grant or assign any right, title or interest in or to the mark or the goodwill attached thereto.
(6) Any and all use of the mark by licensee as allowed under program rules shall inure solely to the benefit of the department.
(7) Printers' and media companies' use of the mark is limited to reproduction of the mark for use by program members on their advertising, promotional and/or display materials.
(f) The department has the sole authority to determine whether an applicant is eligible for a GO TEXAN Rural Community associate membership.
§29.25.Application Submission and Review.
(a) Applications for "GO TEXAN Rural Community" certified or associate membership shall be made in writing on a form prescribed by the department. Program guidelines and application forms may be obtained via the department's Web site at www.tda.state.tx.us or by contacting the Texas Department of Agriculture at P.O. Box 12847, Austin, Texas 78711.
(b) Applications shall be submitted to the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711.
(c) Within 30 days of receipt of an application for "GO TEXAN Rural Community" certified membership or associate membership, the department shall grant or deny the application and forthwith notify the applicant in writing of the decision setting forth in detail the reasons for such grant or denial.
(d) The Commissioner or his designee may deny an application for GO TEXAN Rural Community certification or associate membership if:
(1) the application is not made in compliance with these rules;
(2) the applicant does not meet the eligibility requirements set forth in these rules; or
(3) for any other reason.
§29.26.Appeal of Application Determination.
(a) If the applicant wishes to contest an initial determination made in accordance with §29.25 of this title (relating to Application Submission and Review), notice of protest shall be filed by the applicant with the commissioner within 15 days of receipt by the applicant of notice of such initial determination. The date of notification is the date the notice was mailed by first class mail. Should notice of protest be timely filed, the applicant's request shall be administered as a contested case as provided for the Administrative Procedure Act, Texas Government Code, Chapter 2001, and Chapter 1 of this title (relating to General Procedures).
(b) If notice of protest has not been filed with the commissioner within 15 days of receipt by the applicant of notice of such initial determination, such initial determination shall become final.
§29.27.Denial of Application.
An application for certified or associate membership may be denied if:
(1) Application is not made in compliance with §29.23 and/or §29.24 of this title (relating to Eligibility for Certified Membership; Application and Eligibility for Associate Membership; Application).
(2) The applicant cannot provide adequate assurances that the rural community for which application is made qualifies and will continue to qualify for the program(s) in which it is enrolled.
(3) The applicant has misused the mark prior to the date of application; or
(4) Applicant's use of the mark would either:
(A) impair or frustrate the department's efforts to certify, expand or encourage development of the rural communities in Texas; or
(B) fail to enhance the integrity and image of the program, as determined by the department; or
(5) for other reasons, as determined appropriate by the department.
§29.28.Registration of Those Entitled to Use the Mark.
(a) The Commissioner shall maintain a list of the names of all certified members and associate members granted permission under these sections to use the mark. The list shall be available upon request for public inspection during normal business hours in the offices of the Texas Department of Agriculture, 1700 North Congress Avenue, in Austin, Texas.
(b) Procedure for renewal of licensees authorized to use the mark, which shall be made every three years.
(1) Forty-five days before the expiration date of the registration the department shall mail to each licensee a renewal application.
(2) Within 30 days of receipt by the department of the renewal application, the department will mail to the licensee a renewal license agreement.
(3) Failure to remit the renewal application by the due date shall result in the licensee being designated as inactive. Failure to remit renewal application within 366 days of the due date shall result in the expiration of the license and a new application for certified membership or associate membership will be required for re-instatement to the program.
§29.29.Use of the Mark.
A licensee's use of the mark shall comply with the following.
(1) Upon approval of an application, the department shall mail to the licensee a license agreement, which is valid for three years and shall expire on the last day of the month corresponding to the license anniversary date. The department shall also provide copies of the mark, suitable for reproduction.
(2) Other than the use of the mark, no licensee shall use any statement of affiliation or endorsement by the State of Texas or the department in the advertising, marketing or other commercial use of the certification mark.
(3) Licensees shall indemnify and hold harmless the commissioner, the State of Texas, and the department for any claims, losses, or damages arising out of or in connection with the person's/communities advertising, marketing or other commercial use of the mark.
(4) Any permission under the license agreement granted to a licensee to use the mark shall be nonexclusive and nontransferable by the licensee listed in the application.
(5) Licensees shall do nothing inconsistent with the ownership of the mark in the department, and all use of the mark by any licensee shall inure to the benefit of and be on behalf of the department. Further, the licensees shall not have any right, title, or interest in the mark, other than the right to use the mark in accordance with the license agreement. Licensees must agree not to attack the title of the department to the mark, or attack the validity of the license agreement or the permission granted by the department.
(6) The nature of the rural communities that will be advertised or marketed by licensees in connection with the mark shall conform to any standards that may be set from time to time by the department. Licensees shall cooperate with the commissioner by supplying the commissioner with specimens of use of the mark upon request.
(7) Licensees shall comply with all applicable laws and regulations and obtain all appropriate governmental approval pertaining to the advertising, marketing or other commercial use of the mark.
(8) Licensee shall use the mark only in the form and manner, and with appropriate legends, as prescribed from time to time by the commissioner. At the direction of the department, Licensee shall affix on all items utilized in the licensed use, appropriate legal notices, as follows: "GO TEXAN and Design is a certification mark of, and is used under license from, the Texas Department of Agriculture".
(9) The department shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the mark.
(10) The department may consider in its evaluation of an applicant or licensee any information regarding an applicant or member that could impair the department's efforts to promote the development of rural communities.
(11) The consideration of information as provided in paragraph (10) of this section may include consideration of any information that may not enhance the integrity and positive image of the program, including, but not limited to, a review of criminal information, as allowed by applicable laws and regulations.
(12) A Licensee shall be prohibited from modifying the mark, as found in the license agreement, for use in any way.
§29.30.Termination of Registration and License To Use the Mark.
(a) Authorization and license to use the mark may be revoked at any time if the department determines that a licensee has misused the mark.
(b) Misuse of the mark includes, but is not limited to:
(1) Use of the mark in the advertising, marketing or other commercial use for which registration to use the mark has not been granted by the department;
(2) Use of the mark in the advertising, marketing or other commercial use which is of a quality markedly inferior to that representative of similar rural community located in Texas; or
(3) Use of the mark would either:
(A) Impair or frustrate the department's efforts to certify, expand or encourage development of the rural communities located in Texas; or
(B) Fail to enhance the integrity, and image, or mission of the program, as determined by the department;
(4) Use of the mark in a manner violating any rule promulgated by the commissioner.
(5) The department may revoke license to use the mark if a certified member or associate member fails to comply with program guidelines.
(c) Proceedings for the revocation of a license to use the mark shall be conducted in the manner provided for contested cases by the Administrative Procedure Act, Texas Government Code, Chapter 2001, and Chapter 1 of this title (relating to General Procedures).
(d) A proceeding for revocation of a license to use the mark shall not preclude the commissioner from pursuing any other remedies, including, where applicable, the penal and injunctive remedies provided for by law.
§29.31.Benefits of Membership.
(a) GO TEXAN Rural Community Program certified members will receive the following benefits:
(1) Use of the mark on promotional materials to indicate certification and participation in the GO TEXAN Rural Community Program campaign promoting rural Texas and to take advantage of the visibility of the GO TEXAN program.
(2) Receipt of the GO TEXAN Rural Community Program newsletter containing information and news of interest and use to rural communities.
(3) Regular e-mail updates with timely information on workshops, resources and agencies or organizations focused on rural development.
(4) Inclusion in the GO TEXAN Rural Community Program database.
(5) A link on the GO TEXAN Rural Community Program web site.
(6) Eligibility to participate in the Hometown STARS and Bootstrap Bucks grant programs.
(7) Eligibility for the Hardworking Rural Community award and recognition.
(b) GO TEXAN Rural Community Program associate members will receive the following benefits:
(1) Use of the mark on promotional materials to indicate support of a rural community eligible to apply under §29.23 of this title (relating to Eligibility for Certified Membership; Application) and participation in the GO TEXAN Rural Community Program campaign promoting rural Texas, and to take advantage of the visibility of the GO TEXAN program.
(2) Receipt of the GO TEXAN Rural Community Program newsletter.
(3) Regular e-mail updates with timely information on workshops, resources and agencies or organizations focused on rural development.
(4) Inclusion in the GO TEXAN Rural Community Program database.
§29.32.Expiration and Renewal of Certified Membership.
(a) A certified member's membership expires on the third anniversary of the date the initial certified membership is issued.
(b) To be considered for renewal of certified membership by the department, an applicant must:
(1) complete and submit a renewal application; and
(2) submit any information or documentation required by the department.
§29.33.Use of the "Texas Yes!" Mark.
(a) Nothing in this Subchapter B shall affect the validity of any existing license agreement with the department concerning use of the "Texas Yes!" Mark.
(b) Licensees currently using the "Texas Yes!" mark may continue to do so under the terms of their license agreement with the department.
(c) Any "Texas Yes!" Program grant agreement entered into before the effective date of these rules, and the repeal of the "Texas Yes!" Program rules, shall continue in effect under the terms of the agreement, including terms allowing for the use of the "Texas Yes!" logo.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 4, 2008.
TRD-200801291
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: April 20, 2008
For further information, please call: (512) 463-4075