PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 12. WEIGHTS AND MEASURES

The Texas Department of Agriculture (the department) proposes amendments to Chapter 12, Subchapter A, §12.1, and Subchapter H, §12.72 and §12.73, concerning regulation of public weighers. The amendments are proposed to make revisions to the public weigher regulations to conform to requirements established by the enactment of Senate Bill (SB) 1016, 81st Legislative Session, 2009, which requires licensing of businesses, rather than the individuals employed by the business; and eliminates the distinction between state and county public weighers. Changes are made throughout the sections for purposes of clarification and to make the sections consistent with SB 1016.

The proposed amendments to §12.1 remove definitions for "County Public Weigher," "Deputy Public Weigher," and "State Public Weigher." A new definition for a "Public Weigher" is added. Section 12.72 is amended to eliminate the distinction between county and state public weighers and to also change the bond amount required for a license. Section 12.73 is amended to establish a registration fee for a public weigher.

Andria Perales, Coordinator for Weights and Measures Programs, has determined that for the first five-year period the amended sections are in effect, there will be a fiscal impact for the state government as a result of enforcing or administering the amended sections. There will be an estimated loss of revenue of $49,860 per year due to fewer licenses that will be issued as a result of changing the licensing requirement to the business client level rather than the individual employee of the business. There will be no fiscal implication for local government.

Ms. Perales has also determined that for the first five-year period the amended sections are in effect, the public benefit resulting from the administration and enforcement of the sections, as amended will be a more streamlined licensing process and efficient use of agency resources. There will be an economic cost to some microbusinesses, small businesses and individuals required to comply with the proposed amendments. Since the proposed amendments will shift the licensing requirements for a public weigher from the employees of the business to the business client, only those businesses who currently have less than four individuals with public weigher licenses will have a negative fiscal impact. Businesses who currently have four individuals with public weigher licenses will experience no change in license fee and bond amounts. Businesses who currently have more than four individuals with public weigher licenses will experience a decrease in overall license fee and bond amounts required. Approximately 159 microbusinesses, small businesses, or persons with less than four County or Deputy Public Weigher licenses will see an increase in registration fees ranging from $120 - $360 per registration, and an increase in the bond amount ranging from $2500 - $7500 per registrant. There will be no impact on approximately 13 microbusinesses, small businesses or persons with a total of four County or Deputy Public Weigher licenses. Approximately 50 microbusinesses, small businesses, or persons with more then four County or Deputy Public Weigher licenses will see a decrease in registration fees in the amount of $120 per weigher and a decrease in bond amount in the amount of $2500 per weigher. There will be a decrease of $420 in registration fees and a bond amount of $10,000 per weigher for microbusinesses, small businesses, or persons with more than one State Public Weigher. Currently, only one business has more than one State Public Weigher license. Fees established in this proposal are established in accordance with Article VI-4, Rider 3, Senate Bill 1, Appropriations Act, 81st Legislature, 2009, which provides that the Texas Department of Agriculture shall collect fee amounts which offset, when feasible, the direct and indirect costs of administering its regulatory activities. Therefore, no regulatory flexibility analysis is required.

Comments on the proposal may be submitted to Andria Perales, Coordinator for Weights and Measures Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §12.1

The amendments to §12.1 are proposed under the Texas Agriculture Code, §13.258, which provides the department with the authority to adopt rules related to the regulation and enforcement of public weighers and §13.255, as amended by SB 1016, which provides the department with the authority to establish fees for a public weigher certificate of authority; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Texas Agriculture Code, Chapter 13.

§12.1.Definitions.

In addition to the definitions set out in the Texas Agriculture Code, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (6) (No change.)

[(7) County Public Weigher--An individual elected or appointed to issue an official certificate only in the county for which appointed.]

[(8) Deputy Public Weigher--An individual appointed by a county public weigher to assist in weighing commodities.]

(7) [(9)] Device--Any pump, scale, or bulk or liquefied petroleum gas meter used in a commercial transaction. Device includes any accessory which may affect accuracy. The term also includes weighing and measuring equipment in official use for the enforcement of law or for the collection of statistical information by government agencies.

(8) [(10)] Handbook 44--NIST publication that sets the specifications, tolerances and other technical requirements for devices.

(9) [(11)] Licensed inspection company--A company licensed by the department authorized to employ registered technicians who may place devices into service or remove an out-of-order tag and may also perform inspections of LPG meters and ranch scales.

(10) [(12)] Licensed service company--A company licensed by the department authorized to employ registered technicians who may place devices into service or remove an out-of-order tag.

(11) [(13)] LPG Meter--A device used for the measurement of liquefied petroleum gas.

(12) [(14)] NCWM--National Conference on Weights and Measures.

(13) [(15)] NIST--National Institute of Standards and Technology, United States Department of Commerce.

(14) [(16)] Official certificate--A certificate declaring the accurate weight or measure of a commodity which includes: the time and date the weight or measure was taken, signature and license number of the public weigher, and the seal of the department.

(15) [(17)] OIML--International Organization of Legal Metrology.

(16) [(18)] Operator of a Device--A person operates a device if the person collects or distributes payments for a commercial transaction for which the device is used; oversees the day-to-day operation of the device; or owns, leases, manages, or otherwise controls the physical location of the device or the device itself.

(17) [(19)] Out-of-Order tag--A notice attached to a device directing that the device may not be used for commercial service.

(18) [(20)] Person--An individual, partnership, firm, corporation, or association.

(19) [(21)] Place in service--An approval for the device to be used.

(20) Public Weigher--A business appointed to issue an official certificate in Texas.

(21) [(22)] Ranch scale--A livestock scale which is located on a private ranch and which has a capacity of 5,000 pounds or greater.

(22) [(23)] Registered technician--An individual registered with the department who may place devices into service and remove an out-of-order tag or, if employed by an inspection company, may also perform inspections of LPG meters and ranch scales.

(23) [(24)] Service Report--A report prescribed by the department, indicating the type of service, device type, device location, service/inspection company license number, and registered technician number.

(24) [(25)] Sub-kit--A subdivided series of test standards that weigh a total of not less than one pound in avoirdupois units and whose smallest test standard weighs not more than one-sixteenth (1/16) ounce or five-thousandths (0.005) pound.

[(26) State Public Weigher--An individual elected or appointed to issue an official certificate anywhere in Texas.]

(25) [(27)] Test--A field examination of a device to determine compliance with the requirements of this chapter.

(26) [(28)] Test Standard--A certified weight or measure used to test a device.

(27) [(29)] Test kit--A collection of test standards that collectively weigh 30 pounds and that consists of one sub-kit, at least two one-pound standards, and any other combination of standards that allows a scale with a capacity of 30 pounds or less be tested in one-pound increments to capacity.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2009.

TRD-200902683

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 9, 2009

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

4 TAC §12.72, §12.73

The amendments to §12.72 and §12.73 are proposed under the Texas Agriculture Code, §13.258, which provides the department with the authority to adopt rules related to the regulation and enforcement of public weighers and §13.255, as amended by SB 1016, which provides the department with the authority to establish fees for a public weigher certificate of authority; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Texas Agriculture Code, Chapter 13.

§12.72.Bond.

Any bond executed as a condition for holding office as a public weigher shall be:

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

(3) in the amount of $10,000 payable to the State of Texas and filed with the department. [ filed in the following manner:]

[(A) state public weighers shall file the bond with the department; or]

[(B) county and deputy public weighers shall file the bond with the office of the county clerk of the county in which the public weigher intends to operate.]

§12.73.Fees.

[(a) County or Deputy public weigher fee is $120.]

[(b)] Public [State public] weigher fee is $480.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2009.

TRD-200902684

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 9, 2009

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

SUBCHAPTER B. NUTRITION WORKING GROUPS

4 TAC §26.20, §26.21

The Texas Department of Agriculture (the department) proposes new Chapter 26, Subchapter B, §26.20, concerning the Early Childhood Health and Nutrition Interagency Council, and §26.21, concerning the Interagency Farm-To-School Coordination Task Force. New §26.20 is proposed to establish the Early Childhood Health and Nutrition Interagency Council as a council within the department's food and nutrition division, as authorized by the enactment of Senate Bill 395 (SB 395) by the 81st Texas Legislature, 2009, to research, assess and develop an early childhood nutrition and physical activity plan for implementation in the state. New §26.21 is proposed to establish the Interagency Farm-To-School Coordination Task Force within the department's food and nutrition division, as authorized by the enactment of Senate Bill 1027 (SB 1027) by the 81st Texas Legislature, 2009, to develop and implement a plan to facilitate the availability of locally grown food products in public schools.

Angela Olige, Assistant Commissioner for Food and Nutrition, has determined that for the first five years the new sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the new sections.

Ms. Olige also has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of administering and enforcing the new sections will be to establish working groups within the department that will enhance the resources available in the areas of early childhood nutrition and physical activity. There will be no economic cost for micro-businesses, small businesses or individuals who are required to comply with the sections, as proposed.

Comments on the proposal may be submitted to Angela Olige, Assistant Commissioner for Food and Nutrition, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

New §26.20 is proposed under the Health and Safety Code, Chapter 15, as enacted by the passage of HB 395, 81st Legislature, 2009, §115.003, which authorizes the department to establish the Early Childhood Health and Nutrition Interagency Council; and §115.012, which provides the department with the authority to adopt rules to implement Chapter 115. New §26.21 is proposed under the Texas Agriculture Code (the Code), §12.0026, as enacted by the passage of SB 1027, 81st Legislature, 2009, which requires the department to establish the Interagency Farm-To-School Coordination Task Force; the Code, §12.016, which provides the department with the authority to adopt rules to carry out its duties under the Code; and Texas Government Code, §2001.006, which provides the department with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.

The code affected by the proposal is the Health and Safety Code, Chapter 115, and the Texas Agriculture Code, Chapter 12.

§26.20.Early Childhood Health and Nutrition Interagency Council.

(a) Purpose. The Early Childhood Health and Nutrition Interagency Council (Council) is created pursuant to the Health and Safety Code Chapter 115 and is established within the Texas Department of Agriculture (the department) to research, assess and develop an early childhood nutrition and physical activity plan for implementation in the state.

(b) Composition. The Council is composed of eight (8) members as follows:

(1) a representative of the Texas Health and Human Services Commission who is involved in the coordination of children's programs, appointed by the executive commissioner of the Texas Health and Human Services Commission;

(2) a representative of the Department of State Health Services' health promotion and chronic disease prevention programs, appointed by the commissioner of state health services;

(3) a representative of the Department of State Health Services' Special Supplemental Nutrition Program for Women, Infants, and Children, appointed by the commissioner of state health services;

(4) a representative of the Texas Workforce Commission, appointed by the executive director of the Texas Workforce Commission;

(5) a representative of the department, appointed by the commissioner of agriculture;

(6) a representative of the Texas Education Agency's school health programs, appointed by the commissioner of education;

(7) a representative of the Department of Family and Protective Services' Child Care Licensing Division, appointed by the commissioner of the Department of Family and Protective Services; and

(8) a representative of the Texas AgriLife Extension Service, appointed by the director of the Texas AgriLife Extension Service.

(c) Presiding Officer. The representative of the department shall serve as the presiding officer of the Council.

(d) Meetings. The Council shall meet in person at least three times each year, and may hold meetings by conference call, as necessary.

(e) Duties. The Council shall:

(1) consult with stakeholders in the course of its regular meetings and by other means, as appropriate;

(2) review current research in the areas of child nutrition and physical activity;

(3) review the status of agency programs related to promotion of healthy nutrition and physical activity for children;

(4) identify state and federal funding sources for the promotion of health and nutrition in early childhood settings; and

(5) develop an early childhood nutrition and physical activity plan with a recommended timeline for implementation over a six (6) year period.

(f) Duration. The Council is subject to Chapter 325 of the Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the Council is abolished on September 1, 2019.

(g) Reporting. Reporting takes place through meetings held by the Council. Through these meetings, the Commissioner and/or department staff discuss matters related to the Council's business and the Council provides oral feedback and direction. The Council is staffed by the department. Department staff prepares and maintains the minutes of each Council meeting. Staff maintains a record of actions taken and distributes copies of approved minutes and other Council documents to Council members and the Commissioner.

§26.21.Interagency Farm-To-School Coordination Task Force.

(a) Purpose. The Interagency Farm-To-School Coordination Task Force (Task Force) is created pursuant to the Texas Agriculture Code, §12.0026 and is established within the Texas Department of Agriculture (the department) to develop and implement a plan to facilitate the availability of locally grown food products in public schools.

(b) Composition. The Task Force is composed of the following members:

(1) a representative of the department, appointed by the commissioner of agriculture (Commissioner);

(2) a representative of the Texas Education Agency, appointed by the commissioner of education;

(3) a representative from the Department of State Health Services, appointed by the commissioner of state health services; and

(4) at least one representative from each of the following groups appointed by the Commissioner:

(A) fruit and vegetable producer organizations;

(B) school food service organizations;

(C) food distribution businesses;

(D) child nutrition and advocacy organizations;

(E) parent organizations;

(F) educational institutions that conduct research in the areas of agriculture and nutrition; and

(G) health nutrition educators who serve school directors.

(c) Presiding Officer. The representative of the department shall serve as the presiding officer. The Task Force shall meet at the call of the Presiding Officer.

(d) Duties. The Task Force shall:

(1) design new education resources, or review or update existing resources, on nutrition and food education that may be used by schools and school districts;

(2) expand food-focused experiential education programs;

(3) offer assistance in identifying funding sources and grants that allow schools and school districts to recover the costs associated with purchasing locally grown food products;

(4) develop a database of available locally grown food products for use by school food service agencies that includes contact and purchasing information for the products;

(5) identify, design, or make available training programs to enable local farmers and ranchers to market their products to schools and school districts;

(6) advise schools and school districts on methods by which a school or school district may improve its facilities to allow for the use of minimally processed, fresh, and locally produced foods in school meals;

(7) provide technical assistance to school food service agencies to establish procedures, recipes, menu rotations, and other internal processes that accommodate the use of locally grown foods in public schools;

(8) offer advanced skills development training to school food service employees regarding the proper methods of handling, preparing, and serving locally grown foods; and

(9) conduct any other activity considered by the task force as necessary to achieve its goals under this section.

(e) Duration. The Task Force shall remain in existence as long as deemed necessary by the Commissioner.

(f) Reporting. Reporting takes place through meetings held by the Task Force. Through these meetings, the Commissioner and/or department staff discuss matters related to the task force's business and the Task Force provides oral feedback and direction. The Task Force is staffed by the department. Department staff prepares and maintains the minutes of each task force meeting. Staff maintains a record of actions taken and distributes copies of approved minutes and other Task Force documents to Task Force members and the Commissioner.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2009.

TRD-200902685

Dolores Alvarado Hibbs

General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 9, 2009

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