Part 1.
TEXAS DEPARTMENT OF AGRICULTURE
Chapter 17.
MARKETING AND PROMOTION
Subchapter A. TEXAS COMMODITY REFERENDUM LAW
3.
TEXAS GRAIN PRODUCER INDEMNITY FUND PROGRAM
4 TAC §§17.26 - 17.29
The Texas Department of Agriculture (the department)
proposes new §§17.26 - 17.29, concerning the Texas Grain
Producer Indemnity Fund Program (Program), established as Texas Agriculture
Code, Chapter 41, Subchapter I, by the enactment of House Bill 1840
(HB 1840), 82nd Legislature, 2011. The new sections provide procedures
for conducting the grain producer indemnity referendum authorized
by HB 1840, including voter eligibility requirements, notice requirements,
voting procedures, verification requirements, and the process for
requesting a recount.
Dolores Alvarado Hibbs, General Counsel, 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
the administration and enforcement of the new sections. Any costs
incurred in the conduct of the grain producer indemnity referendum
will be paid by the Program.
Ms. Hibbs also has determined that for each year of the first five
years the proposed new sections are in effect the public benefit anticipated
as a result of administering and enforcing the new sections will be
having rules in place to provide grain producers information on how
the grain producer indemnity referendum will be conducted. There will
be no economic cost for micro-businesses, small businesses or individuals
who are required to comply with the new sections, as proposed.
Written comments on the proposal may be submitted to Dolores Alvarado
Hibbs, General Counsel, Texas Department of Agriculture, P.O. Box
12847, Austin, Texas 78711. Written comments must be received no later
than 30 days from the date of publication of the new sections in the
Texas Register.
New §§17.26 - 17.29 are proposed under the
Texas Agriculture Code, Chapter 41, Subchapter I, §41.212, which
requires that the department adopt rules necessary to conduct a grain
producers indemnity referendum.
The code affected by this proposal is the Texas Agriculture Code,
Chapter 41.
§17.26.Scope and Applicability.
Except where exempted by this division, or by the Texas Agriculture
Code Chapter 41, as amended by HB 1840, enacted by the 82nd Legislature,
Regular Session, 2011 (HB 1840), Chapter 17, Subchapter A, Division
1, governs the Texas Grain Producer Indemnity Fund Program and referendum.
This division controls in case of conflict with other sections of
this subchapter.
§17.27.Definitions.
The following words and terms, when used in this division,
shall have the following meanings, unless the context clearly indicates
otherwise:
(1)
Balloting--Procedure in which ballots are available
to eligible producers at designated locations and then returned to
the department with the producer's indication of vote and signature
indicating voter eligibility as a bona fide producer.
(2)
Board--The members of the Texas Grain Producer
Indemnity Board as established by Texas Agriculture Code, Chapter
41, as amended by HB 1840.
(3)
Commissioner--The commissioner of agriculture.
(4)
Department--The Texas Department of Agriculture.
(5)
Grain Producer--A person, including the owner of
a farm on which grain is produced, or the owner's tenant or sharecropper,
engaged in the business of producing grain or causing grain to be
produced for commercial purposes.
§17.28.Voter Eligibility.
A grain producer, as defined in §17.27 of this division
(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 division.
§17.29.Conduct of Referendum; Ballots; Canvass and Watchers; Recounts.
(a)
The Commissioner shall conduct a referendum as
authorized under the Texas Agriculture Code, Chapter 41, as amended
by HB 1840.
(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, including the information
required to be in the notice by subsection (d) of this section, to
each Texas AgriLife County Extension office in the state.
(d)
Notice provided in accordance with 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:
(1)
two-thirds or more of those voting in the election
voted in favor of the referendum proposition; or
(2)
those voting in favor of the proposition produced
at least 50 percent of the volume of production of the commodity during
the relevant production period.
(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 division.
(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 Texas AgriLife
County Extension offices. Eligible producers may pick up ballots during
normal office hours of the Texas AgriLife County Extension offices
during the voting period.
(1)
An eligible producer who is unable to access a
Texas AgriLife County Extension office to pick up a ballot may request
a mail ballot by contacting department 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 department headquarters located in Austin, Texas.
(m)
A watcher may be present at department 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 department headquarters 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 department's principal 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.
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 April 26, 2012.
TRD-201202140
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: June 10, 2012
For further information, please call: (512) 463-4075
Chapter 90.
TEXAS GRAIN PRODUCER INDEMNITY FUND PROGRAM RULES
The Texas Grain Producer Indemnity Board (TGPIB or board)
proposes new Chapter 90, Subchapters A - E, §§90.1, 90.20
- 90.24, 90.30 - 90.38, 90.40 - 90.44, 90.50 and 90.51, concerning
the operations of the board and indemnification of eligible grain
producers in the event a grain buyer fails to pay the grain producer
for the grain producer's grain. The new sections are adopted to establish
the procedures for the TGPIB program, as provided for in the Texas
Agriculture Code, Chapter 41, Subchapter I, and Texas Administrative
Code, Title 4, Chapter 90. The new sections provide definitions, board
duties and responsibilities, procedures for collecting producer assessments,
recordkeeping and reporting requirements, procedures for initiating
indemnity claims, and administrative review procedures. The new sections
were developed with input from the board.
Dee Vaughan, chairman of the board, has determined that for the
first five years the new sections are in effect, there will be no
anticipated costs to state or local government, because any costs
incurred will be covered by the TGPIB program from producer assessments.
The anticipated economic cost to grain producers will be the cost
of the assessment, which is based on the quantity and price of the
grain sold by the producer. There will also be a cost to grain buyers
in order to comply with the program. It is not possible to determine
the buyers' costs at this time, but costs will likely be incurred
due to the necessary administrative work by the grain buyer. The new
sections provide for the grain buyer to retain a portion of its administrative
costs of collecting the assessment.
Mr. Vaughan has determined that for each year of the first five
years the proposed new sections are in effect, the public benefit
anticipated as a result of enforcing the new sections will be to provide
a financial safety net for grain producers who have not been compensated
for their stored or contracted grain.
Comments on the proposal may be submitted to Dee Vaughan, Chairman,
Texas Grain Producer Indemnity Board, c/o Texas Corn Producers Board,
4205 North I-27, Lubbock, Texas 79403. 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 §90.1
Chapter 90, Subchapter A, is proposed under Texas
Agriculture Code, §41.211, which provides the Texas Grain Producer
Indemnity Board with the authority to adopt rules to administer its
duties under the Code.
The code provisions affected by the proposal are the Texas Agriculture
Code, Chapter 41.
§90.1.Definitions.
The following words and terms when used in this part shall
have the following meanings unless the context clearly indicates otherwise.
(1)
Board--The members of the Texas Grain Producer
Indemnity Board as established by Texas Agriculture Code, Chapter
41.
(2)
Claimant--A grain producer who satisfies the requirements
of Texas Agriculture Code, §41.208 and files an indemnification
claim with the Board.
(3)
Commissioner--The commissioner of agriculture.
(4)
Customary deductions--Typical monetary deductions
made by a grain buyer from the sales price of grain, due to differences
in weight, grade, quality, or other factors that influence price,
as supported by general industry standards.
(5)
Delivery point--The location at which grain is
to be delivered under the terms of a contract, or if the grain is
not sold pursuant to a contract, the location at which grain is to
be transferred from the grain producer to the first grain buyer.
(6)
Department--The Texas Department of Agriculture.
(7)
Final sales price--The price to be paid by the
grain buyer at the first point of sale to the grain producer, based
on the terms of the contract between the buyer and producer, or if
no contract, based on customary market standards for reaching a price.
(8)
First point of sale--The initial buyer of grain
from a grain producer.
(9)
FOB--"Free on board," referring to that designated
location, or FOB point, where title to grain passes from the grain
producer to the grain buyer.
(10)
Grain--Means corn, soybeans, wheat, and grain
sorghum, and includes that grain which is grown for seed.
(11)
Grain buyer--A person who buys cultivated grain
or seed from a grain producer, or stores unsold grain or seed for
a grain producer. The term includes a purchaser, seed dealer, warehouseman,
processor, or a commercial handler.
(12)
Grain producer--A person, including the owner
of a farm on which grain, or grain seed, is produced, or the owner's
tenant or sharecropper, engaged in the business of producing grain
or causing grain to be produced for commercial purposes.
(13)
Grain sorghum--Any grain harvested from Sorghum
bicolor (L.) Moench or any related species of the genus Sorghum of
the family Poaceae, including, but not limited to, hybrid sorghum
seeds, inbred sorghum line seed, sorghum cultivar seed, and all other
sorghum seed that is grown for commercial production.
(14)
Indemnification claim--A claim filed with the
Board by a producer under Chapter 41, Subchapter I of the Texas Agriculture
Code, seeking payment from the Board because a grain producer has
suffered a loss due to a financial failure of a grain buyer.
(15)
Judgment--As it pertains to "claim initiation
date" and "financial failure" definitions, means a judgment entered
by a court in the state of Texas having jurisdiction, with such judgment
ordering the buyer to pay the claimant producer for grain that was
delivered by the producer but not paid for by the buyer.
(16)
Refund allotment--A payment issued by the Board
to all grain producers who submitted an assessment in a given year,
upon the Board's determination that the financial condition of the
indemnity fund supports such a return of assessment dollars to participating
grain producers.
(17)
Service charge--Charge or fee that a grain producer
may pay a grain buyer for activities related to the receipt, processing,
holding, and shipment of grain.
(18)
Warehouseman--A person who stores grain in a house,
building, or other room, and is meant to include "public warehouse
operators" and "warehouse operators," as those terms are defined in
the Texas Agriculture Code.
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 April 26, 2012.
TRD-201202141
Dolores Alvarado Hibbs
General Counsel, Texas Department of Agriculture
Texas Grain Producer Indemnity Board
Earliest possible date of adoption: June 10, 2012
For further information, please call: (512) 463-4075
4 TAC §§90.20 - 90.24
Chapter 90, Subchapter B, is proposed under Texas
Agriculture Code, §41.211, which provides the Texas Grain Producer
Indemnity Board with the authority to adopt rules to administer its
duties under the Code.
The code provisions affected by the proposal are the Texas Agriculture
Code, Chapter 41.
§90.20.Meetings.
(a)
Location, conduct and time of meetings. The Board
shall meet in a location within the state of Texas, with such location
of each meeting to be determined by the Chairman of the Board. The
Board may also conduct meetings via teleconference or other available
electronic means, if the Chairman so designates. The Board shall meet
at least quarterly, on specific dates to be determined by the Board.
Meetings will be conducted in accordance with Chapter 41 of the Texas
Agriculture Code and the Texas Open Meetings Act.
(b)
Notice of meetings. A written notice of the agenda,
date, time and place of each business meeting of the Board and/or
hearing conducted by the Board, shall be posted on the Secretary of
State's Open Meetings Website in accordance with the Open Meetings
Act. In cases of emergency or urgent public necessity, notice shall
be given as authorized by the Open Meetings Act.
(c)
Chairman to preside. The chairman of the Board
shall preside over all meetings of the Board and shall perform all
duties delegated to him or her under this chapter. In the chairman's
absence, the vice-chairman shall preside over all meetings of the
Board, and shall perform all duties of the chairman under this chapter.
(d)
Public comment period. As part of its business
meetings, the Board shall include a public comment period to allow
members of the public to appear and provide comment on matters within
the jurisdiction of the Board. The Board, in its sole discretion,
may impose a time limit on the public comment period generally or
on person(s) addressing the Board. This item will be included in the
agenda posted with the Secretary of State's office for the business
meeting.
§90.21.Election of Officers.
Annually, the Board shall select a Chairman, Vice-Chairman,
Secretary, and Treasurer among the Board members. Each officer shall
be selected by a majority of Board members present at the time of
the elections. Each person elected to serve as an officer shall serve
in that particular office for no more than 1 year consecutively.
§90.22.Management of Budget.
(a)
At each quarterly meeting, and annually, the Board
shall review all of the Board's financial matters, including, but
not limited to: fund income, amounts paid on claims in the preceding
applicable period, and administrative costs. Based on this financial
information, annually, the Board shall prepare a budget.
(b)
The annual budget shall set the minimum fund balance
necessary to cover all anticipated administrative and operating costs,
as well as a reasonable estimate for indemnity claim payments. The
Board shall submit the annual budget to the Commissioner for review
and approval. Upon the Commissioner's approval, the Board is authorized
to make expenditures for activities authorized by Chapter 41, Subchapter
I of the Texas Agriculture Code.
§90.23.Selection of Board Agents.
The Board shall have the authority to select a third party
to carry out the services and administrative duties necessary to operate
the indemnity fund and program, and to enter into contracts or other
arrangements with such third party to operate the program described
in Texas Agriculture Code, Chapter 41, Subchapter I.
§90.24.Reporting Requirements.
(a)
The Board shall have an annual independent audit
of the books, records of account and minutes of proceedings maintained
by the Board prepared by an independent certified public accountant
or firm of independent certified public accountants. The audit shall
be filed with the Board, and the Commissioner, and shall be made available
to the public by the Board or the Commissioner. The state auditor
or the department may examine any work papers from the independent
audit or may audit the transactions of the Board if the state auditor
or the department's internal auditor determines that an additional
audit is necessary.
(b)
Not later than the 30th day after the last day
of the fiscal year the Board shall submit to the commissioner a report
itemizing all income and expenditures and describing all activities
of the Board during the preceding fiscal year. The annual report shall
include, at a minimum:
(1)
a balance sheet of assets and liabilities;
(2)
an itemization of income/expenditures;
(3)
a statement of Board activities carried out in
the year covered by the report; and
(4)
copies of any resolutions adopted by the Board
regarding the program.
(c)
The Board shall provide fidelity bonds in amounts
determined by the Board for employees or agents who handle funds for
the council.
(d)
Prior to any expenditure of funds, the Board shall
submit its annual budget to the Commissioner for approval. The department
shall act on the Board's budget submission within 45 days of the department's
receipt of the submission.
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 April 26, 2012.
TRD-201202142
Dolores Alvarado Hibbs
General Counsel, Texas Department of Agriculture
Texas Grain Producer Indemnity Board
Earliest possible date of adoption: June 10, 2012
For further information, please call: (512) 463-4075
4 TAC §§90.30 - 90.38
Chapter 90, Subchapter C, is proposed under Texas
Agriculture Code, §41.211, which provides the Texas Grain Producer
Indemnity Board with the authority to adopt rules to administer its
duties under the Code.
The code provisions affected by the proposal are the Texas Agriculture
Code, Chapter 41.
§90.30.Maximum Assessment Rate.
(a)
The maximum assessment rate shall be the rate approved
by the applicable vote of grain producers as set forth in Subchapter
I, Chapter 41 of the Texas Agriculture Code. The Board may not exceed
this rate without obtaining approval of the state's grain producers,
with such approval being subject to the requirements of the initial
referendum approval set forth in Subchapter I, Chapter 41 of the Texas
Agriculture Code.
(b)
The Board will determine the applicable assessment
rate to be used by grain buyers each year. The current assessment
rate shall at no time exceed the maximum assessment rate approved
by the state's grain producers in the initial referendum or in subsequent
votes. The proposed maximum assessment rate is 0.6% of the final sales
price of the grain. The Board shall provide the current assessment
rate on its public website for all grain buyers to be able to access,
or through other reasonable means available to the Board.
§90.31.Assessment Calculation.
The amount of the producer assessment, as set by the Board,
shall be calculated using the final sales price of the grain, including
all premiums and discounts for moisture, quality, variety, or any
other characteristic of the grain. The producer assessment shall be
calculated before the deduction of commodity Board assessments, storage,
drying, cleaning, or any other service charge.
§90.32.Notice to Grain Buyers.
The secretary of the Board, shall notify each known grain buyer
in the state by certified mail, and shall make reasonable efforts
to notify all other grain buyers in the state by registered or certified
mail, by electronic transmission of information, by publication in
grain industry trade magazines or newsletters, or by publication in
newspapers of general circulation, of the duty to collect the assessment.
The initial notification shall be sent to the grain buyers within
30 days of the certification of the referendum results. The notice
shall describe the manner in which the assessment is to be collected,
and shall list the date on or after which the grain buyer is to begin
collecting the assessment. Following the initial notification, the
secretary of the Board shall submit annual notices to each grain buyer
so long as the Board determines an assessment shall be collected.
§90.33.Grain Buyer Collection.
(a)
Beginning upon receipt of the notification described
in §90.32 of this subchapter (relating to Notice to Grain Buyers)
and continuing until such time as the board gives notice otherwise,
each grain buyer within the state, at the first point of sale, shall
collect the assessment. The grain buyer shall collect the assessment
by deducting the applicable percentage from the final sales price
of the grain or from any funds advanced for that purpose.
(b)
As set forth in this section, a grain buyer may
retain a portion of the assessment collected, to cover the grain buyer's
administrative costs in collecting the assessment. The allowable administrative
cost shall be set by the Board annually. The secretary of the Board
will notify the grain buyers in the state of the administrative cost
that may be retained. Acceptable methods of notification include U.S.
mail, facsimile, electronic mail, or posting to the Board's public
website. The buyer shall select its preferred method for receiving
notifications, and notify the Board upon remittance of its first quarterly
assessment.
(c)
The assessment funds submitted by the buyer shall
be accompanied by a remittance form, with such form to be provided
by the Board. The buyer shall clearly indicate on the remittance form
the total amount of grain purchased that quarter, the total price
paid for grain that quarter, the total assessment collected and remitted
to the Board for that quarter, and the dollar amount kept by the grain
buyer to cover the grain buyer's administrative costs pursuant to
subsection (b) of this section.
§90.34.Remittance of Assessment.
(a)
Each grain buyer shall, no later than the 10th
day of each quarter of the calendar year, remit to the Board the producer
assessments collected during the previous quarter, along with a remittance
form provided by the Board and completed by the grain buyer, to the
treasurer of the Board. In the event a grain buyer does not purchase
any grain in a particular quarter and therefore, collects no assessment
dollars, the buyer shall submit to the Board a quarterly remittance
form indicating no grain transactions occurred during that quarter.
Failure to submit such a form could lead the Board to investigate
the grain buyer for failure to comply with the assessment.
(b)
A grain buyer shall report to the Board any change
in the information submitted on the remittance form within thirty
(30) days of the quarterly remittance.
§90.35.Grain Producer Reporting.
Annually, each grain producer who has submitted grain assessments
to the Board through a grain buyer shall submit a producer information
report to the Board on a form to be provided by the Board. The form
shall contain the following information for each producer: name, address,
annual assessment amount(s) remitted, tax identification number for
each producer; and, the names of all grain buyers that the producer
delivered grain to in the past year. The form shall be submitted to
the Board by March 15 each year, for all grain sales that occurred
and corresponding assessments that were submitted during the Board's
prior fiscal year (February 1 to January 31). Each grain producer
shall also submit all invoices, settlement sheets, or other industry
accepted documents issued by grain buyers during the past year, to
verify that the producer submitted grain to the grain buyers that
are listed on the producer information report form. The Board will
keep this information in a permanent database that will be utilized
by the Board in administering this program.
§90.36.Refunds.
(a)
Board determination. Annually, the Board will review
its budget for the next year and its current financial status, and
based on that review, will determine whether or not to issue refund
allotments based on prior years' producer assessment submissions.
In any event, if the Board has determined that the Board's financial
account is not sufficient to pay refund allotments and maintain a
minimum fund balance, as defined in §90.22 of this chapter (relating
to Management of Budget), the Board may not issue refund allotments.
For any producer who files a refund request with the Board, and the
Board determines that refund allotments are not to be issued at the
time of the request, the producer shall remain eligible to file an
indemnity claim with the Board until a refund allotment is issued
to the producer, pursuant to the growers' request.
(b)
Order of payment.
(1)
If the Board has determined to issue refund allotments
under subsection (a) of this section, the date of a producer refund
request, if any, shall not give that refund request priority. All
payments shall be made in the following manner. Upon the Board's initial
determination to issue refund allotments, the Board will refund the
assessment paid by all grain producers who participated during the
initial year of the program. The Board will, on an annual basis, continue
to determine whether or not to issue refund allotments. Producers
eligible for refund allotments will be determined based on previously
submitted assessments and producer data collected by the Board. Board-initiated
refunds to all eligible producers made under this section shall not
affect a producer's eligibility for future indemnity payments.
(2)
Refund allotments in the initial, and any subsequent
years, shall be issued on a pro rata basis within the assessment year
then subject to the refund allotment, provided that the oldest outstanding
assessment year, or partial year, shall be entitled to priority in
payment of refund allotments. Therefore, using the data maintained
in the Board's permanent database, the Board will identify the producers
that submitted assessments during the year in question and are, therefore,
eligible for the refund allotment. The Board shall exercise its discretion
in determining the exact amount of the refund allotment; the Board
may determine that the refund allotment payment to each eligible producer
is equal to that producer's pro-rata share of one year's assessment
dollars, a partial year's assessment dollars, or multiple years' assessment
dollars. Each subsequent determination by the Board, regardless of
when made, to issue refund allotments shall be made in the same manner.
(c)
Payment suspension. Following the Board's initial
determination to issue refund allotments and subsequent distribution
of same, the Board may, at any time, decide to suspend any further
refund allotment payments if issuing such payments would cause the
Board's deposit account to fall below its minimum fund balance. All
refund allotment payments shall remain suspended until such time as
the Board determines that its deposit account is sufficient to pay
one full year of refund allotments and maintain a minimum fund balance,
and refund allotments will continue in accordance with this subsection.
§90.37.Discontinuance of Assessment.
If in such case a referendum is held for discontinuing of assessment
and the commissioner of agriculture verifies the results in favor
of discontinuance, then the assessment collection shall become void
immediately. All grain buyers shall be notified by registered or certified
mail by the Board within 10 days to discontinue assessment collection.
The Board will submit to the commissioner within 90 days a plan of
disbandment. Books will be audited by a state auditor and will be
filed with the commissioner of agriculture.
§90.38.Restrictions on Use of Producer Assessments.
(a)
General statement. Except as otherwise provided
in this section, funds assessed or collected by the Board may not
be expended to directly or indirectly promote or oppose the election
of any candidate for public office or to influence legislation.
(b)
Actions to influence legislation. Except as otherwise
provided in this section, the term "influence legislation" includes,
but is not limited to:
(1)
any attempt to affect the opinions of the general
public or any segment thereof regarding pending or anticipated legislation;
(2)
communication with any member or employee of a
legislative body, or with any government official or employee who
may participate in the formulation of pending or anticipated legislation;
(3)
contacting or urging the public or producers of
the commodity covered by the Board to contact members of a legislative
body for the purpose of proposing, supporting, or opposing legislation;
(4)
actively advocating the adoption or rejection of
legislation by filing formal comments in support of or in opposition
to pending or anticipated legislation; or
(5)
any communication with members made for the purpose
of encouraging members or producers to do any of the actions identified
in paragraphs (1) - (4) of this subsection.
(c)
Actions not influencing legislation. The term "influence
legislation" does not include the following:
(1)
the development and recommendation to the legislature
of amendments to Texas Agriculture Code, Chapter 41;
(2)
communication to appropriate government officials
of information relating to the conduct, implementation, or results
of promotion, research, consumer information, or industry information
activities under the Texas Agriculture Code, Chapter 41;
(3)
any action designed to market a commodity or commodity
products directly to a foreign government or political subdivision
thereof;
(4)
making available to the public or producers the
results of nonpartisan analysis, study, or research;
(5)
providing technical advice or assistance (where
such advice would otherwise constitute the influencing of legislation)
to a governmental body or to a committee or other subdivision thereof,
including appearances before any such body, committee or subdivision,
in response to a request by such body, committee or subdivision, as
the case may be;
(6)
appearances before, or communications to, any legislative
body with respect to a possible decision of such body which might
affect the existence of the organization, its powers and duties or
tax-exempt status;
(7)
communications between the Board and producers
of the commodity represented by the Board with respect to legislation
or proposed legislation of direct interest to the organization and
such producers, other than communications described in subsection
(b) of this section;
(8)
any communication with a government official or
employee, other than a communication with a member or employee of
a legislative body where such communication would otherwise constitute
the influencing of legislation; and
(9)
publication of newsletter articles regarding pending
legislative issues of interest to members or producers which contain
neutral, factual reports.
(d)
Promoting or opposing election of candidates for
public office. Activities that constitute promoting or opposing election
of candidates for public office include, but are not limited to, the
publication or distribution of written or printed statements or the
making of oral statements on behalf of or in opposition to such a
candidate.
(e)
Prohibition against indirect funding of actions
to influence legislation or promoting or opposing the election of
candidates for public office.
(1)
Entities and individuals receiving funding from
a commodity Board organized under the Texas Agriculture Code, Chapter
41, shall not use any such funds to influence legislation, as defined
in this section, or for supporting or opposing election of a candidate
for public office.
(2)
Producer assessments may not be used to fund research
whose results are to be utilized solely to influence legislation,
as that term is defined in this section.
(f)
Definition of "legislation." The term "legislation"
as used in this section includes action with respect to Acts, bills,
resolutions, or similar items by the Congress, any state legislature,
any local council, or similar governing body, or by the public in
a constitutional amendment or other similar procedure, including Acts
providing appropriations to state or federal entities.
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 April 26, 2012.
TRD-201202143
Dolores Alvarado Hibbs
General Counsel, Texas Department of Agriculture
Texas Grain Producer Indemnity Board
Earliest possible date of adoption: June 10, 2012
For further information, please call: (512) 463-4075
Part 6.
TEXAS GRAIN PRODUCER INDEMNITY BOARD
Subchapter B. TEXAS GRAIN PRODUCER INDEMNITY BOARD
Subchapter C. PRODUCER ASSESSMENTS
Subchapter D. CLAIMS