TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 18. ORGANIC STANDARDS AND CERTIFICATION

The Texas Department of Agriculture (the Department) adopts the repeal of Title 4, Part 1, Chapter 18, Subchapter D, §18.300, pertaining to Adoption by Reference; Subchapter E, §18.400, pertaining to Adoption by Reference; Subchapter F, Division 2, §18.662, pertaining to Noncompliance Procedure for Certified Operations; Subchapter F, Division 3, §18.671 and §18.672, pertaining to Exclusion from Organic Sale, and Emergency Pest Disease or Treatment, respectively; and Subchapter F, Division 5, §18.704 and §18.706, pertaining to Transitional Certificates, and Transactional Certification Requirements and Logo, respectively. Additionally, the Department proposes amendments to Subchapter F, Division 3, §18.670, pertaining to Adoption by Reference; and Subchapter F, Division 5, §18.702, pertaining to Fee Schedule. The Department proposes new Subchapter D, §18.300, pertaining to Transitional Certification Requirements; new Subchapter E, §18.400, pertaining to Transfer of Certification; Subchapter F, Division 2, §18.662, pertaining to Noncompliance Procedure for Transitional Operations; and Subchapter F, Division 3, §18.671, pertaining to Unannounced Inspections. The adoption of §18.671 is made with non-substantive changes to the proposal published in the October 13, 2017 issue of the Texas Register (42 TexReg 5608).

The adopted changes were made to update regulations necessary for the operation of the organic and transitional certification programs, including compliance and inspection procedures. The changes remove references to state or Federal regulations which are obsolete or conflict with current rule. The fee schedule is simplified for clarification and presentation in a more concise manner.

No comments were received on the proposal.

SUBCHAPTER D. LABELS, LABELING, AND MARKET INFORMATION

4 TAC §18.300

The repeal is adopted pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704695

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


4 TAC §18.300

The adoption is made pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704701

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


SUBCHAPTER E. CERTIFICATION

4 TAC §18.400

The repeal is adopted pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704696

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


4 TAC §18.400

The adoption is made pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704702

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


SUBCHAPTER F. ADMINISTRATIVE

DIVISION 2. COMPLIANCE

4 TAC §18.662

The repeal is adopted pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704697

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


4 TAC §18.662

The adoption is made pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704703

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


DIVISION 3. INSPECTION AND TESTING, REPORTING, AND EXCLUSION FROM SALE

4 TAC §18.670, §18.671

The adoption is made pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

§18.671.Unannounced Inspections.

All currently certified operations and all operations in application status for certification are subject to unannounced inspections. TDA will conduct unannounced inspections pursuant to 7 CFR Part 205, §205.403 and §205.670.

(1) Operations will not incur a fee when selected by TDA for an unannounced inspection. However, if an operation expressly requests an unannounced inspection in addition to their annual routine inspection, a re-inspection fee will be incurred by the operation and the only stipulation that can be made by the certified operation is selection of a 20 day time period in which the inspection will occur.

(2) An unannounced inspection will not include prior notification of the inspector’s arrival. However, certain conditions, including but not limited to distance of travel by the TDA inspector, frequency of personnel at operation, and biosecurity issues, which may make it impossible to conduct an unannounced inspection of the operation without prior notification. In such cases, a TDA employee may contact the operation up to 4 hours prior to arriving onsite to ensure that appropriate representatives are present.

(3) The TDA inspector shall disclose to the operation the reason that the operation was chosen for the unannounced inspection prior to the start of the inspection.

(4) Criteria for conducting a risk-based unannounced inspection may include, but is not limited to:

(A) Random selection by the TDA;

(B) Previously identified and/or outstanding noncompliance issues;

(C) Investigations and/or responding to complaints;

(D) Organic and non-organic production or handling, which includes visually indistinguishable varieties or processed products;

(E) Risk of an organic product coming into contact with a prohibited substance applied to adjoining land use;

(F) Risk of an organic product or ingredient coming into contact with a prohibited substance or commingling with a nonorganic product during handling; and

(G) Complexity of operation.

(5) Unannounced inspections may fulfill the requirements for annual on-site monitoring inspections of certified organic operations, required by 7 CFR Part 205, §205.403, only if the inspector is able to conduct a full inspection of the operation as required by that section.

(6) Unannounced inspections may be limited in scope, depth, and breadth, and may cover only certain aspects of the operation, such as fields/units/parcels, facilities, products, handling activities, etc.

(7) Inspectors may conduct sampling pursuant to §18.670 of this chapter and 7 CFR Part 205, §205.670 during an unannounced inspection. Operations will not incur a fee for any samples collected by a TDA Organic Inspector unless the collection of one or more samples is expressly requested by the operation.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704704

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


4 TAC §18.671, §18.672

The repeal is adopted pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704699

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


DIVISION 5. MISCELLANEOUS PROVISIONS

4 TAC §18.702

The adoption is made pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704705

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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


4 TAC §18.704, §18.706

The repeal is adopted pursuant to §18.002 of the Texas Agriculture Code (the Code), which provides the Department with the authority to adopt rules for the certification of organic products; §18.006 of the Code, which requires the Department to set fees for the organic certification program in amounts that enable recovery of the costs of administering the program; and §12.016 of the Code, which provides the Department with the authority to adopt rules as necessary for the administration of its powers and duties under the Code.

The Code affected by the adoption is the Texas Agriculture Code, Chapters 12 and 18.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704700

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: December 7, 2017

Proposal publication date: October 13, 2017

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