TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 18. ORGANIC STANDARDS AND CERTIFICATION

The Texas Department of Agriculture (the Department) proposes 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 proposed changes are made to update regulations necessary for the operation of the organic and transitional certification programs, including compliance and inspection procedures. The changes also 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.

New §18.300, Subchapter D, defines land that is eligible to be certified as transitional by the Department. New §18.400, Subchapter E, is added to provide that organic certifications issued by the Department are non-transferable.

TDA is required to comply with 7 CFR Part 205 when issuing corrective action against organic operations. Subchapter F, Division 2, §18.662 is repealed and adopted as new. The proposed amendments to current §18.662 set forth notification standards and penalties in the event of non-compliance. The revisions are made to establish uniform procedures for corrective action as a result of noncompliance with the provisions of Chapter 18 of the Administrative Code.

The amendments to §18.670 are proposed to adopt federal organic certification regulations by reference. New §18.671 removes conflicting state requirements to decrease confusion for organic businesses operating in Texas and residents of Texas who consume agricultural products that have an organic claim. Procedures are introduced in §18.671 to ensure full disclosure and understanding of protocols for unannounced inspections of organic and transitional operations.

Fees set forth in §18.702 are authorized by §18.006 of the Texas Agriculture Code, which requires the Department to recover the costs of administering the organic certification program. The proposed amendments to §18.702 do not increase the current program fees, but clarify charges by organizing them in a more concise manner to be inclusive of current and future trade partners, domestically or internationally. The changes permit the public and the industry to easily determine costs for trade certificates and documents.

The repeal of §18.704 is proposed to eliminate unnecessary language within the Chapter as the current content can easily be dispersed to the public through guidance and policy documentation.

Ms. Mary Ellen Holliman, Coordinator for the Organic Certification Program, has determined that for the first five-year period the proposed new rules and amendments are in effect, there will be no fiscal impact for state government. There is no fiscal impact for local governments.

Ms. Holliman has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of administering the proposed amendments will be increased compliance and auditability among certified organic operations. The proposed amendments and new rules will not have a fiscal impact on applicants or operations certified by the Department as no fees have been raised.

Comments on the proposal may be submitted to Mary Ellen Holliman, Coordinator for Organic Certification Program, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments may be submitted by email at: Organic@TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of this proposal in the Texas Register.

SUBCHAPTER D. LABELS, LABELING, AND MARKET INFORMATION

4 TAC §18.300

The repeal is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.300.Adoption by Reference.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703833

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


4 TAC §18.300

The new rule is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.300.Transitional Certification Requirements.

(a) Land that meets the requirements of 7 Code of Federal Regulations Part 205, §205.202(a) and (c) may be certified as transitional.

(b) Crops planted and harvested from transitional land after the last application of a prohibited substance or excluded method (as established in 7 CFR Part 205, §205.105) may be labeled as Certified Transitional.

(c) Crops harvested from land that has been certified transitional by the department may be sold, labeled, or otherwise represented as being "Certified transitional by the Texas Department of Agriculture". The operation shall not use, nor make any reference to, the word "organic" on the certified transitional product.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703840

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


SUBCHAPTER E. CERTIFICATION

4 TAC §18.400

The repeal is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.400.Adoption by Reference.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703834

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


4 TAC §18.400

The new rule is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.400.Transfer of Certification.

Any certification issued under this chapter is not transferable.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703841

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


SUBCHAPTER F. ADMINISTRATIVE

DIVISION 2. COMPLIANCE

4 TAC §18.662

The repeal is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.662.Noncompliance Procedure for Certified Operations.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703836

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


4 TAC §18.662

The new rule is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.662.Noncompliance Procedure for Transitional Operations.

(a) Notification. When an inspection, review, or investigation of a certified transitional operation or an operation in transitional application status reveals any noncompliance with regulations in this chapter, a written notification of noncompliance shall be sent to the operation. Such notification shall provide:

(1) a description of each noncompliance;

(2) the facts upon which the notification of noncompliance is based; and

(3) the date by which the certified operation must rebut or correct each noncompliance and submit supporting documentation of each such correction when correction is possible.

(b) Resolution. When an operation demonstrates that each noncompliance has been resolved, the department shall send the operation a written notification of noncompliance resolution.

(c) Denial of application for transitional certification. When rebuttal is unsuccessful or correction of the noncompliance is not completed within the prescribed time period, the department shall send the applicant a written notification of denial of transitional certification of the entire operation or a portion of the operation, as applicable to the noncompliance.

(d) Suspension. If a certified transitional operation fails to correct the noncompliance or to resolve the issue through rebuttal, the department shall send the operation a written notification of suspension.

(e) Eligibility. A certified operation or a person responsibly connected with an operation whose transitional certification was previously suspended will be eligible to apply for transitional certification at any time but must provide documentation as evidence that all areas of noncompliance with 7 CFR Part 205 and the rules in this part have been resolved.

(f) Violations of this Chapter. Any operation that:

(1) knowingly sells or labels a product as being certified organic or certified transitional by the department, except in accordance with this chapter, shall be subject to a civil penalty not more than the amount specified in §18.009 of the Texas Agriculture Code.

(2) makes a false statement under this chapter to a certifying agent shall be subject to the provisions of the Texas Agriculture Code, §18.008.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703842

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 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 new rule and amendment are proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.670.Adoption by Reference.

The Texas Department of Agriculture hereby adopts by reference 7 Code of Federal Regulations, Part 205, Subpart G, Administrative, §§205.670 - 205.672 [§205.670].

§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 are 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, to include 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703843

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


4 TAC §18.671, §18.672

The repeal is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.671.Exclusion from Organic Sale.

§18.672.Emergency Pest or Disease Treatment.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703837

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


DIVISION 5. MISCELLANEOUS PROVISIONS

4 TAC §18.702

The amendment is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.702.Fee Schedule.

(a) The categories of fees that may be incurred by an operation applying for initial certification or annual update of certification are as follows: new application fee, certification fees, administrative fees, and additional service fees:

(1) - (3) (No change.)

(4) Additional Service fees. The following fees are incurred at the time the service is requested and are cumulative. The purpose of the following service fees is to facilitate trade and satisfy document requirements by another certifying agent, organic operation, transitional operation, [state] or a foreign government [country].

(A) - (B) (No change.)

(C) Review of an operation's organic system plan for compliance with a trade agreement [the equivalency agreement] between the United States Department of Agriculture National Organic Program and a foreign trade partner [the Canadian Organic Regime (COR)]: $75.

(D) Trade documents: $50 per document requested. [Review of an operation's organic system plan for compliance with the equivalency agreement between the United States Department of Agriculture National Organic Program and the European Community (EU): $75.]

(E) Transaction certificate: $100 per certificate. [Issuance of an attestation notice for compliance with the equivalency agreement between the United States Department of Agriculture National Organic Program and the Canadian Organic Regime (COR): $50.]

[(F) Completion of Certificate of Inspection (COI) for compliance with the equivalency agreement between the United States Department of Agriculture National Organic Program and the European Community (EU): $50.]

[(G) Transaction certificate: $100 per certificate.]

(b) - (c) (No change.)

(d) Scheduled date of annual update.

(1) - (4) (No change.)

(5) If the department finds that the due date for annual update of certification occurs during or immediately preceding a period of 3 months or more where no harvestable crop will be in production or when no organic product will be handled, the department may assign, at its discretion, a due date for annual certification renewal from one of the following dates:

(A) January 31 of each year.

(B) March 31 of each year.

(C) May 31 of each year.

(D) June 31 of each year.

(E) July 31 of each year.

(F) October 31 of each year.

(e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703844

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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


4 TAC §18.704, §18.706

The repeal is proposed 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 proposal is the Texas Agriculture Code, Chapters 12 and 18.

§18.704.Transaction Certificates.

§18.706.Transitional Certification Requirements and Logo.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 26, 2017.

TRD-201703839

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 12, 2017

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