TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 17. MARKETING AND PROMOTION

SUBCHAPTER A. TEXAS COMMODITY REFERENDUM LAW

The Texas Department of Agriculture (Department) adopts the repeal of Title 4, Part 1, Chapter 17, Subchapter A, Texas Commodity Referendum Law, Division 1, General Rules, §§17.1 - 17.10 and §17.12; Division 2, Texas Beef Checkoff Program, §§17.20 - 17.25; Division 3, Texas Grain Producer Indemnity Fund Program, §§17.26 - 17.29. The adoptions are made without changes to the proposal published in the September 8, 2017, issue of the Texas Register (42 TexReg 4557).

The repeals are adopted in order to move all subchapters to new Title 4, Part 1, Chapter 23, related to Texas Commodity Law (Chapter 23). New Chapter 23 relocates all current commodity referendum law rules into one location for convenience and accessibility of the public and industry stakeholders.

New Chapter 23 has been proposed for adoption and shall be effective November 5, 2017.

No comments were received on the proposal.

DIVISION 1. GENERAL RULES

4 TAC §§17.1 - 17.10, 17.12

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704119

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


DIVISION 2. TEXAS BEEF CHECKOFF PROGRAM

4 TAC §§17.20 - 17.25

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704120

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


DIVISION 3. TEXAS GRAIN PRODUCER INDEMNITY FUND PROGRAM

4 TAC §§17.26 - 17.29

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704121

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


CHAPTER 23. TEXAS COMMODITY LAW

The Texas Department of Agriculture (the Department) adopts new Title 4, Part 1, Chapter 23, Texas Commodity Law, Subchapter A, General Provisions, Division 1, General Rules, §23.1; Division 2, Certification of Commodity Organizations, §§23.21 - 23.26; Division 3, Budget Approval and Commodity Assessments, §§23.40 - 23.44; Subchapter B, Texas Beef Promotion and Research Council, §§23.100 - 23.107, without changes. Subchapter C, Texas Grain Producer Indemnity Board, Division 1, General Provisions, §23.200 and §23.201; Division 3, Board Members and Meetings, §§23.230 - 23.234; Division 4, Producer Assessments, §§23.240 - 23.248; Division 5, Claims, §§23.260 - 23.266 are adopted without changes; and Division 2, Elections and Referendum, §23.220 and §23.221; and, Division 6, Appeals and Remedies, §23.280 and §23.281 are adopted with changes. The adoptions were proposed in the September 15, 2017 issue of the Texas Register (42 TexReg 4725).

New Chapter 23 relocates Title 4, Part 1, Chapter 17, Subchapter A, Texas Commodity Referendum Law, and Title 4, Part 6, Chapter 90, Texas Grain Producer Indemnity Fund Program Rules, into one location for convenience and accessibility of the public and industry stakeholders. Chapters 17 and 90 were submitted for repeal in the September 8, 2017 issue of the Texas Register and shall be adopted by the Department effective November 5, 2017.

A change was made to proposed §23.221 to align the administrative rule with Texas Agriculture Code (Code) §41.212(e), to state that a referendum is approved if passed by majority vote. A non-substantive change is made to new §23.281 to clarify that the Commissioner is the final decision maker regarding licensing actions taken as a result of violations of Subchapter I, Chapter 41 of the Texas Agriculture Code (Code). As a note, House Bill 3952, 85th Regular Legislative Session, added §41.128 to the Code which suspended all activities of the Texas Grain Producer Indemnity Board (Board), and the Board is no longer active.

No comments were received on the proposal. Affected industries were notified of the changes.

SUBCHAPTER A. GENERAL PROVISIONS

DIVISION 1. GENERAL RULES

4 TAC §23.1

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704127

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 2. CERTIFICATION OF COMMODITY ORGANIZATIONS

4 TAC §§23.21 - 23.26

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704128

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 3. BUDGET APPROVAL AND COMMODITY ASSESSMENTS

4 TAC §§23.40 - 23.44

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704129

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


SUBCHAPTER B. TEXAS BEEF PROMOTION AND RESEARCH COUNCIL

4 TAC §§23.100 - 23.107

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704130

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


SUBCHAPTER C. TEXAS GRAIN PRODUCER INDEMNITY BOARD

DIVISION 1. GENERAL PROVISIONS

4 TAC §23.200, §23.201

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704131

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 2. ELECTIONS AND REFERENDUM

4 TAC §23.220, §23.221

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

§23.220.Voter Eligibility.

A grain producer, as defined in §23.201 of this subchapter (relating to Definitions), who has sold grain to a grain buyer in the 36 months before the date of the referendum is eligible to vote in a referendum conducted under this subchapter.

§23.221.Conduct of Referendum.

(a) The Commissioner shall conduct a referendum as authorized under Chapter 41 of the Code.

(b) Based upon decisions of the Board, the Commissioner shall propose in a referendum:

(1) The maximum assessment to be paid by grain producers; and

(2) The manner in which the assessment will be collected.

(c) Legal notice must be published 90 days prior to the referendum in one or more statewide or regional newspapers that provide reasonable notice throughout the state. In addition, at least 90 days before the date of the referendum, the Department will give direct written notice of the referendum to each Extension office in the state.

(d) Notices required pursuant to subsection (c) of this section shall include:

(1) the date, hours and polling places for voting in the referendum;

(2) the maximum estimated amount of the assessment proposed to be collected, and the basis of collection;

(3) the manner in which the referendum is to be conducted and the proceeds administered and used; and

(4) who to contact for more information.

(e) An eligible grain producer may vote only once in a referendum and each vote is of equal weight, regardless of the grain producer's volume of production.

(f)A referendum is approved if the Commissioner finds that a majority of votes cast are in favor of the referendum.

(g) All voter information, including a producer's vote in a referendum conducted under this section, is confidential and not subject to disclosure under Chapter 552, Texas Government Code.

(h) Ballots must bear the signature and the address of the producer to be valid. A producer's signature on the ballot certifies that the voter sold grain to a grain buyer in the 36 months before the date of the referendum and that the production volume provided on the ballot is accurate.

(i) Ballots for the referendum will be counted in a manner determined by the Commissioner.

(j) A canvassing committee(s) appointed by the Commissioner shall verify the referendum results to the Commissioner for certification.

(k) The Department will be reimbursed by the Board for all costs associated with conducting a referendum under this subchapter.

(l) The referendum will be conducted in-person with ballots submitted by mail to the Department by the grain producer. Ballots will be available to eligible producers at all county Extension offices. Eligible producers may pick up ballots during normal office hours of the county Extension offices during the voting period.

(1) An eligible producer who is unable to access a county Extension office to pick up a ballot may request a mail ballot by contacting Headquarters. No eligible producer requesting a mail ballot who verifies eligibility to vote shall be refused a ballot.

(2) Ballots must be returned to the Department at the address indicated on the ballot, postage prepaid. Ballots not postmarked by midnight on the final day of the voting period will not be counted.

(3) Mail ballots submitted to the Department shall be maintained at Headquarters.

(m) A watcher may be present at Headquarters for the purpose of observing the processing of election results and until members of the canvassing committee complete their duties. Written notice of intent to be present during processing must be submitted to the Department at least three days prior to the count.

(n) After the ballots are counted and the results verified by the Commissioner, the ballots shall be locked in a container and stored at the Headquarters for a period of 30 days. The closed, stored container containing referendum ballots cannot be opened for the 30-day period without a court order or written request for recount. If no contests or investigations arise out of the referendum within 30 days after certification of such referendum, the Commissioner shall destroy the ballots by shredding.

(o) Request for Recount. A request for recount submitted under this subchapter must:

(1) be in writing;

(2) state the grounds for the recount;

(3) be submitted to the Commissioner within 10 calendar days of canvass results; and

(4) be signed by the person requesting the recount or, if there is more than one person, any one or more of them and state each requesting person's name and residence address. If the request is made on behalf of an organization or association, the person submitting the request must state that they are authorized to request a recount on behalf of the organization or association.

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 October 16, 2017.

TRD-201704132

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 3. BOARD MEMBERS AND MEETINGS

4 TAC §§23.230 - 23.234

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704133

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 4. PRODUCER ASSESSMENTS

4 TAC §§23.240 - 23.248

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704134

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 5. CLAIMS

4 TAC §§23.260 - 23.266

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

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 October 16, 2017.

TRD-201704135

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


DIVISION 6. APPEALS AND REMEDIES

4 TAC §23.280, §23.281

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Chapter 41 of the Texas Agriculture Code.

§23.280.Administrative Review.

(a) Filing of request.

(1) Any person who believes they have been aggrieved in connection with a determination made by the Board under division 5 of this subchapter (relating to Claims) may file a request for administrative review by the Department.

(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 Board.

(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 Board.

(c) Informal Review.

(1) Once a request is received by the Department, it shall be forwarded to the Department's 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, 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 Board or any other relevant party. Copies of any additional information received shall be provided to both the requester and the Board.

(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 Board 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 Board 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 Board. 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 Board 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, 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) Appropriate remedial actions. If the Department, or the Commissioner on appeal, determines that the Board acted in a manner that warrants action by the Department, the Department may prescribe corrective action to be carried out by the Board. The Department is not authorized to award monetary damages to a person filing a request under this section.

§23.281.Penalties and Remedies.

If any grain buyer violates Chapter 41, Subchapter I of the Code by failing to promptly remit assessments, the Commissioner is authorized to suspend, revoke, or deny a Department issued license that the grain buyer may hold, and in any case in which the Commissioner determines, after opportunity for a hearing, that there has been violation of or failure to comply with the Code.

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 October 16, 2017.

TRD-201704136

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: November 5, 2017

Proposal publication date: September 15, 2017

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


PART 6. TEXAS GRAIN PRODUCER INDEMNITY BOARD

CHAPTER 90. TEXAS GRAIN PRODUCER INDEMNITY FUND PROGRAM RULES

The Texas Department of Agriculture (Department), on behalf of the Texas Grain Producer Indemnity Board (Board) adopts the repeal of Title 4, Part 6, Chapter 90, Subchapter A, General Provisions, §90.1; Subchapter B, Board Members, §§90.20 - 90.24; Subchapter C, Producer Assessments, §§90.30 - 90.38 Subchapter D, Claims, §§90.40 - 90.46; Subchapter E, Appeals, Remedies, §90.50 and §90.51. The adoptions are made without changes to the proposal published in the September 8, 2017, issue of the Texas Register (42 TexReg 4558).

The repeals are adopted in order to move all subchapters of Title 4, Part 6, Chapter 90 to new Title 4, Part 1, Chapter 23, related to Texas Commodity Law (Chapter 23). New Chapter 23 relocates all current Grain Producer Indemnity Board rules into one location for convenience and accessibility of the public and industry stakeholders. No substantive changes have been made to the rules as currently written in Chapter 90.

New Chapter 23 has been proposed for adoption and shall be effective November 5, 2017.

No comments were received on the proposal.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §90.1

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704122

Jessica Escobar

Assistant General Counsel

Texas Grain Producer Indemnity Board

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


SUBCHAPTER B. BOARD MEMBERS

4 TAC §§90.20 - 90.24

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704123

Jessica Escobar

Assistant General Counsel

Texas Grain Producer Indemnity Board

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


SUBCHAPTER C. PRODUCER ASSESSMENTS

4 TAC §§90.30 - 90.38

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704124

Jessica Escobar

Assistant General Counsel

Texas Grain Producer Indemnity Board

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


SUBCHAPTER D. CLAIMS

4 TAC §§90.40 - 90.46

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704125

Jessica Escobar

Assistant General Counsel

Texas Grain Producer Indemnity Board

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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


SUBCHAPTER E. APPEALS, REMEDIES

4 TAC §90.50, §90.51

The adoption is made pursuant to Chapter 41 of the Agriculture Code, which provides the Department with the authority to adopt rules to administer its duties related to commodity boards.

The code affected by the adoption is Texas Agriculture Code, Chapter 41.

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 October 16, 2017.

TRD-201704126

Jessica Escobar

Assistant General Counsel

Texas Grain Producer Indemnity Board

Effective date: November 5, 2017

Proposal publication date: September 8, 2017

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