PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 1. GENERAL PROCEDURES

The Texas Department of Agriculture (Department) proposes amendments to 4 Texas Administrative Code, §§1.1 - 1.5, 1.10 - 1.13, 1.15, 1.17 - 1.21, 1.23 - 1.27, 1.30, and 1.41 and the repeal of §1.8 and §1.22. The proposed amendments and repeals are collectively referred to as the proposal.

The Department identified the need for the proposal during its rule review conducted pursuant to Texas Government Code §2001.039, the adoption for which can be found in the Review of Agency Rules section of this issue.

The proposed amendments to §1.1 remove the definition of "Act" and substitute it with "APA" for clarity. Accordingly, "Act" is changed to "APA" throughout these rules. The proposed amendments to §1.1 also add a definition for "deputy commissioner," which is used frequently in Title 4, Part 1. In addition, definitions of acronyms associated with the Texas Rules of Civil Evidence and Texas Rules of Civil Procedure are deleted and will be reflected directly in rules where such acronyms are used.

The proposed amendments to §1.2 clarify that these rules do not apply to Food and Nutrition appeals, which have separate procedures. The proposed amendments to §1.3 represent nonsubstantive changes to incorporate conforming changes to reflect new definition of APA and to reflect an updated organizational job title in the Department's hearing office. The proposed amendments to §1.4 clarify the requirements to petition the Department for the adoption of a rule.

The proposed amendments to §1.5 provide for service by email and to reflect an updated organizational job title in the Department's hearing office. The proposed amendments to §1.10 provide clarifying information, and the proposed amendments to §1.11 require pleadings to contain email addresses, if available; eliminate the requirement for a physical inked signature, and remove duplicative language. The proposed amendments to §1.12 adds language to reflect an updated organizational job title in the Department's hearing office and for purposes of completeness to list all documents by which a ruling may be issued. The proposed amendments to §1.13 add clarifying language. The proposed amendments to §1.15 remove redundant language and allow prehearing conferences to take place via videoconference.

The proposed amendments to §1.17 remove language related to motions to withdraw so that the rule only addresses motions for extension of time for clarity and include other nonsubstantive changes to clarify and reflect current Department business practices. Relevant language related to motions to withdraw is proposed to be added to §1.10(g).

The proposed amendments to §1.18 clarify where the authority of administrative law judges (ALJs) employed by the Department differs from that of ALJs employed by the State Office of Administrative Hearings, as do proposed amendments to §1.23, and grant ALJs the authority to conduct hearings by videoconference.

The proposed amendments to §1.25 clarify when an ALJ order becomes final. The proposed amendments to §1.27 remove references to the rules of evidence, as §1.20 already addresses the rules of evidence.

The proposed amendments also correct typographical errors and make various editorial changes to §§1.19 - 1.21, 1.23, 1.24, 1.26, 1.30 and 1.41.

The repeal of §1.8 and §1.22 is proposed because the Department determined the rules are not necessary.

LOCAL EMPLOYMENT IMPACT STATEMENT: Susan Maldonado, Lead Deputy General Counsel has determined that the proposal will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Government Code §2001.022.

GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Government Code §2001.0221, the Department provides the following Government Growth Impact Statement for the proposal. For each year of the first five years the proposal will be in effect, Ms. Maldonado has determined the following:

(1) the proposal will not create or eliminate a government program;

(2) implementation of the proposal will not require the creation of new employee positions or the elimination of existing employee positions;

(3) implementation of the proposal will not require an increase or decrease in future legislative appropriations;

(4) the proposal will not require an increase or decrease in fees paid to the Department;

(5) the proposal does not create a new regulation;

(6) the proposal will repeal an existing regulation;

(7) the proposal will not change the number of individuals subject to the rules; and

(8) the proposal will not affect the state's economy.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Ms. Maldonado has determined that enforcing or administering the proposal does not have foreseeable implications relating to cost or revenues to state or local governments.

PUBLIC BENEFITS: Ms. Maldonado has determined that for each year of the first five-year period the proposal is in effect, the public benefit will be improved clarity and readability of rules related to contested hearings and department procedures.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL: Ms. Maldonado has determined that for each year of the first five-year period the proposal is in effect, there will be no costs to persons who are required to comply with the proposal.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: Ms. Maldonado has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposal, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code §2006.002 is not required.

Comments on the proposal may be submitted by mail to Skyler Shafer, Assistant General Counsel, P.O. Box 12847, Austin, Texas 78711, or by email to skyler.shafer@texasagriculture.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL RULES OF PRACTICE

4 TAC §§1.1 - 1.5, 1.10 - 1.13, 1.15, 1.17 - 1.21, 1.23 - 1.27, 1.30, 1.41

The amendments are proposed under Section 12.016 of the Texas Agriculture Code, which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Texas Agriculture Code and Section 2001.004 Texas Government Code, which allows state agencies to adopt rules of practice.

Texas Agriculture Code, Chapter 12 is affected by the amendments.

§1.1.Definitions.

The following words and terms, when used in this part, shall have the following meanings, unless the context clearly indicates otherwise.

[(1) Act--Administrative Procedure Act, Texas Government Code, Chapter 2001.]

(1) [(2)] Administrative law judge--The commissioner or the commissioner's [his] designee [who shall be] assigned to conduct a hearing on a matter before the department [and issue a proposal for decision for consideration by the commissioner or his designee], or for cases referred to [the State Office of Administrative Hearings (]SOAH[)] for the conducting of hearings in accordance with the joint memorandum of understanding [entered into by the department and SOAH and] found at Subchapter G, §1.310 of this chapter [title] (relating to Joint Memorandum of Understanding (MOU) Between the Texas Department of Agriculture (TDA) and the State Office of Administrative Hearings (SOAH) Concerning Procedures for Contested Cases Conducted By SOAH for TDA), a person employed by and assigned by SOAH to conduct a hearing on a matter before the department.

(2) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(3) - (6) (No change.)

(7) Contested case--Unless otherwise provided herein, the meaning given contested case in the APA [Act], §2001.003.

(8) Department--The Texas Department of Agriculture.

(9) Deputy commissioner--The deputy commissioner of agriculture of the State of Texas, who is appointed under and acts pursuant to the Code, §11.007.

(10) [(9)] Intervenor--Any party in interest or other person with a justiciable or administratively cognizable interest in a pending proceeding before the department who petitions the commissioner for permission to be received as a party to such proceeding.

(11) [(10)] License--Unless otherwise provided herein, the meaning given license in the APA [Act ], §2001.003.

(12) [(11)] Licensing--Unless otherwise provided herein, the meaning given licensing in the APA [Act], §2001.003.

(13) [(12)] Party--Unless otherwise provided herein, the meaning given party in the APA [Act], §2001.003.

(14) [(13)] Party in interest--Any person who, in the determination of the administrative law judge, is actually and substantially interested in the subject matter of a proceeding before the department as distinguished from one who has only a nominal, formal, or technical interest in or connection with such proceeding.

(15) [(14)] Person--Unless otherwise provided herein, the meaning given person in the APA [Act ], §2001.003.

(16) [(15)] Petitioner--Any person who has by written petition applied for or sought an available remedy from the department.

(17) [(16)] Pleading--Any written petition, complaint, request for discovery, response to a request for discovery, protest, answer, motion, or other written instrument filed with the department, or if appropriate, with the State Office of Administrative Hearings.

(18) [(17)] Respondent--A person against whom any complaint or proceeding has been filed before the department.

(19) [(18)] Rule--Unless otherwise provided herein, the meaning given rule in the APA [Act], §2001.003.

(20) [(19)] SOAH--The State Office of Administrative Hearings.

(21) [(20)] Texas Register--The official publication of the secretary of state's office created by the Texas Government Code, Chapter 2002.

[(21) TRCP--The Texas Rules of Civil Procedure.]

[(22) TRCE--The Texas Rules of Civil Evidence.]

§1.2.Purpose.

The purpose of these rules is to provide for [a simple and efficient system of procedure, by establishing uniform] standards of practice and procedure for actions by and before the department, thereby encouraging public participation and notice of department [agency] actions. Department proceedings shall be conducted in accordance with the APA and this subchapter. This subchapter does not apply to Food and Nutrition appeals. [These rules are designed to supplement procedures established by Administrative Procedure Act, or by other applicable statute, and therefore any such statutory procedure not specifically included in this chapter shall be applicable to practice before the department. These rules shall be liberally construed, with a view towards the purpose for which they were adopted.]

§1.3.Scope and Construction of Rules.

(a) These rules shall govern the procedure for the institution, conduct, and determination of [all causes, licensing, and] proceedings before the department including hearings referred to SOAH [by the department, as well as the procedure for the adoption of all rules promulgated by the department]. They shall not be construed so as to enlarge, diminish, modify, or alter the jurisdiction, powers, authority, or the substantive rights of any person or the department.

(b) When references are made to the APA [Administrative Procedure Act (the Act)], the words "agency," "an agency," or "the agency" used therein shall be taken to mean the department. When references are made to the Texas Rules of Civil Procedure, or the Texas Rules of [Civil] Evidence, the word "court" used therein shall be taken to mean the department, or where appropriate, SOAH, and the word "clerk" shall mean the hearings clerk or other staff member primarily responsible for legal support to the administrative law judge for the department, or where appropriate, SOAH. Any reference to provisions of the APA [Act] or rules shall mean the provision cited as currently in force or as it shall be hereafter amended.

(c) - (d) (No change.)

§1.4.Procedure for Petition for Adoption of Rules.

[(a) All department rules shall be promulgated in accordance with the provisions of the Administrative Procedure Act (the Act).]

[(b) All comments concerning a proposed rule submitted to the department pursuant to the provisions of the Act, §2001.029, shall:]

[(1) clearly identify the party or parties wishing the comment to be registered with the department;]

[(2) concisely address the proposed rule(s) upon which comment is made;]

[(3) be filed with the commissioner or the person designated to receive comments as stated in the Texas Register's publication of the proposed rule, no later than 30 days from the date the proposed rule is published in the Texas Register; and]

[(4) contain the party's name, mailing address, and telephone number.]

[(c) These rules shall be applied in the absence of other rules to the contrary promulgated by any board, commission, or committee, where such board, commission, or committee is expressly authorized to adopt such rules under the Texas Agriculture Code, and insofar as may be applicable and practicable.]

(a) [(d)] Any interested person may petition the department for the adoption of a proposed rule pursuant to the APA, §2001.021. A [Such] petition must [shall]:

(1) be in writing and request that a rule be adopted;

[(2) be addressed to the commissioner and dated;]

(2) [(3)] give a brief explanation of the proposed rule;

(3) [(4)] set out the precise text of the proposed rule;

(4) [(5)] give the reasons or policy for the proposed rule;

(5) [(6)] give the statutory or other authority for the proposed rule;

(6) [(7)] give applicable fiscal information concerning the rule's impact upon state and local governments [government], if adopted, separately stated for the first five years of the rule's operation;

(7) [(8)] give the public benefit to be expected from the proposed rule in the first five years of its operation;

(8) [(9)] give the probable economic cost to persons required to comply with the rule during the first five years of its operation;

(9) [(10)] contain the interested person's name, email address and telephone number; [a request that the rule be adopted; and]

(10) be mailed to Texas Department of Agriculture, Attn: Commissioner of Agriculture, P.O. Box 12847, Austin, TX 78711, or delivered to the department's headquarters at 1700 N. Congress Ave, 11th Floor, Austin, TX 78701; and

(11) be signed by the interested person and dated [petitioner with his name, mailing address, and telephone number set out thereunder].

(b) [(e)] Within 60 days after the receipt of a petition for the adoption of a rule, the department shall either deny the petition in writing, stating its reasons for the denial, or initiate rulemaking proceedings in accordance with the APA [Act], Subchapter B.

§1.5.Filing and Service of Documents.

(a) All pleadings filed by any party relating to any contested proceeding pending or to be instituted before the department shall be filed with the hearings clerk or other staff member primarily responsible for legal support to the administrative law judge for the department, and if appropriate, [the] SOAH. A pleading shall be deemed filed only when actually received.

(b) (No change.)

(c) Service of a document is complete upon deposit of the document in the mail [Deposit in the United States mail of a registered or certified letter, return receipt requested], or with a [mailing by] commercial delivery service [carrier such as Federal Express], addressed to the [affected] party or the party's attorney [of record for the party] and sent to the party's last known address[, or if a party is a licensee, the last address shown by the records of the department], or the attorney's last known address[, shall constitute service of the pleading]. The date of deposit as hereinabove provided is the date of the act, after which any designated period of time begins to run as provided in §1.6 of this chapter [title] (relating to Computation and Enlargement of Time).

(d) Service may also be accomplished by [telephonic document transfer (]fax[)]. Service by fax [telephonic document transfer] is complete when sent to the recipient's fax [current telecopier] number. Service completed after [by telephonic document transfer] after 5:00 p.m. local time of the recipient shall be deemed served on the following day.

(e) Service may also be accomplished by email. Service by email is complete when sent to the recipient's last known email address. Service completed after 5:00 p.m. local time of the recipient shall be deemed served on the following day.

(f) [(e)] The willful failure of any party to make such service shall be sufficient grounds for the entry of an order by the administrative law judge, striking the protest, reply, answer, motion, or other pleading from the record.

(g) [(f)] A certificate by the party, attorney, or representative who files a pleading, stating that it has been served on the other parties, shall be prima facie evidence of such service. The following form of certificate will be sufficient in this connection: "I hereby certify that a copy of this (state name of pleading) was sent by (state manner of service) to each addressee listed below on ________________________. Signature."

(h) [(g)] If a document was sent to a party by the department by regular mail, certified mail, or registered mail, the document is presumed to have been received no later than five days after mailing. §1.10.Parties.

(a) Parties to proceedings before the department shall be classified as applicants, petitioners, complainants, respondents, or intervenors. Parties to a proceeding shall have the right to present a direct case, cross-examine all witnesses, file requests for discovery [information], make legal arguments, and otherwise fully participate as a party to the proceeding.

(b) - (f) (No change.)

(g) Withdrawals of attorneys and representatives shall be governed by the provisions of the Texas Rules of Civil Procedure, Rule 10. A motion to withdraw must be served on parties no less than five days prior to the designated date that the matter is to be heard.

§1.11.Pleadings.

(a) (No change.)

(b) Pleadings shall state their object[,] and shall contain a concise statement of the facts in support of the same, and shall be signed by the party, the party's attorney, or the party's [filing same or his] authorized representative.

(c) The original of every pleading shall be signed [in ink] by the party filing it, or by such party's attorney or authorized representative. [Pleadings shall contain the name, mailing address, telephone number and telecopier (fax) number, if any, of the party filing the pleading or the name, mailing address, telephone number, and business address of the representative.]

(d) (No change.)

(e) All pleadings for which no official form is prescribed shall contain:

(1) the name, mailing address, telephone number, [telecopier (]fax[)] number and email address, if any, of the party seeking to bring about or prevent action by the department;

(2) - (5) (No change.)

(6) a certificate of service, as required by §1.5 of this chapter [title] (relating to Filing and Service of Documents).

(f) - (h) (No change.)

§1.12.Motions.

(a) Any motion relating to a pending proceeding shall, unless made during a hearing, be written, set forth the relief or order sought and the specific reasons and grounds therefor, and be timely filed with the hearings clerk or other staff member primarily responsible for legal support to the administrative law judge for the department, in accordance with §1.5 of this chapter [title] (relating to Filing and Service of Documents). If the movant desires an oral argument on the motion, the motion shall so state.

(b) - (d) (No change.)

(e) The administrative law judge may issue a written decision on a motion, state the decision on the record, or reserve ruling until after the hearing of the case. If a ruling on a motion is reserved until after the hearing of the case, the ruling shall be in writing and may be included in the proposal for decision or final order.

§1.13.Docketing and Numbering of Cases; Notice of Hearing; Location of Hearings.

(a) (No change.)

(b) Upon the receipt of a request for setting of a hearing on a docketed case, the hearings clerk or other staff member primarily responsible for legal support to the administrative law judge for the department, shall, in coordination with the administrative law judge [assigned to the case], set a hearing date and prepare the notice of hearing. If the case has been referred to SOAH for hearing, the setting of the hearing and preparation and mailing of the notice of hearing shall be done in accordance with the joint memorandum of understanding between the department and SOAH available at Subchapter G, §1.310 of this chapter.

(c) Except as provided in subsection (b) of this section, the notice of hearing shall be issued by the administrative law judge and served on parties as provided at §1.5 of this chapter [title] (relating to Filing and Service of Documents).

(d) The notice of hearing shall comply with the provisions of the APA [Administrative Procedure and Texas Register Act], §2001.052.

(e) Except upon a showing of good cause, all contested case hearings in which the department is a party shall be held [at the offices of SOAH located] in Austin. [For cases heard by the department under the Texas Agriculture Code (the Code), Chapter 103, the location of hearings shall be provided in the Code, §103.006. ] A party may request a change of location by sending a written request stating the reasons compelling such a change to the administrative law judge [assigned to the case]. Any such request shall conform with the requirements of these rules and shall be served upon parties in accordance with §1.5 of this chapter [title ] (relating to Filing and Service of Documents).

§1.15.Prehearing Conference.

(a) In an appropriate proceeding, to assist in the disposition of the proceeding without expense or burden to the parties or the department, the administrative law judge may [in his or her discretion] direct the parties, their attorneys, or representatives to appear before the administrative law judge for a conference to consider any matter which may be considered under the Texas Rules of Civil Procedure, Rule 166, using the procedures set out therein.

(b) The administrative law judge[, in his or her discretion,] may order that the conference provided for in these rules be conducted by videoconference or telephone conference call.

(c) The [At the discretion of the] administrative law judge may order[,] all or part of the prehearing conference to [may] be recorded.

(d) (No change.)

§1.17.Motions for Extension of Time [Continuance or Withdrawal].

Motions for extension of time [continuance or withdrawal regarding matters which have been set for hearing] shall be in writing, [shall be] filed with the hearings clerk or other staff member primarily responsible for legal support to the administrative law judge for the department, or SOAH, and [shall be] served on all parties no [not] less than five days prior to the [designated] date that the matter is to be heard. Such motions must state [shall set forth under oath] the specific grounds upon which the movant seeks such action and [shall make] reference [to] all prior motions for extension of time [of the same nature] filed in the proceeding. The movant shall include a statement that the other party or parties have been contacted and whether they oppose or agree to the motion for extension of time [have opposition to it]. The movant must [shall] also provide a [an agreed] list of suggested future dates for consideration by the administrative law judge. Except for good cause, failure to comply with the provisions of this section may be construed as lack of diligence on the part of the movant[,] and [at the discretion of the administrative law judge,] may result in the denial of the motion or other requested relief with prejudice to refiling.

§1.18.Administrative Law Judges.

(a) Every [administrative] contested case hearing on an action before the department shall be conducted by an administrative law judge.

(b) The administrative law judge presiding shall have the authority to do the following:

(1) - (7) (No change.)

(8) issue subpoenas when required to compel the attendance of witnesses, or the production of papers and documents relating to the hearing, if the administrative law judge is employed by the department;

(9) commission and require the taking of depositions, if the administrative law judge is employed by the department;

(10) ensure [insure] that information and testimony are introduced as conveniently and expeditiously as possible without prejudicing any rights of parties to the proceeding;

(11) - (13) (No change.)

(c) The administrative law judge shall have the authority to conduct [coduct] all or part of a hearing by videoconference or telephone conference as follows.

(1) Upon motion of any party filed no less than five days before any scheduled hearing[, and upon notice to all other parties], the administrative law judge may order that the appearance of any party and/or the testimony of any witness shall be taken by videoconference or telephone. If the motion is filed less than five days before any scheduled hearing, it may be granted by the administrative law judge upon a showing of good cause.

[(2) Use of telephone conference-call procedures may be granted upon motion filed not less than five days before any scheduled hearing. If the motion is filed less than five days before any scheduled hearing, it may be granted by the administrative law judge upon a showing of good cause.]

(2) [(3)] The party requesting witness testimony by videoconference or telephone must [utilizing this telephone conference procedure for witness testimony and/or for that party's appearance shall] provide the name(s) and contact information [telephone number(s)] of the person(s) from whom [telephone] testimony is desired. The administrative law judge may allow for the substitution of contact information [a different telephone number] at the hearing, upon request and the showing of good cause by the party requesting such substitution. In advance of the hearing, that party shall also provide the witness(es) and other parties with true and correct copies of any exhibits to be offered by that party or that party's witness(es) or from which question(s) will be elicited.

[(4) The rules and procedures governing hearings in general shall govern telephone hearings.]

(3) [(5)] The party requesting [using] the videoconference or telephone conference [procedure] shall bear the costs of the conference call incurred for presenting that party's witnesses and/or case.

(d) In the case of a party's failure to comply with a subpoena or commission to take deposition issued by an [the] administrative law judge employed by the department, the [agency or the] party requesting the subpoena or commission may seek enforcement thereof pursuant to the APA [Act], §2001.201.

(e) Upon finding that a party has failed to comply with an administrative law judge's order or that a party has abused orders compelling discovery entered pursuant to the APA [Act] or these rules, the administrative law judge may impose sanctions for such noncompliance or abuse in making, seeking, or resisting discovery. Sanctions may include, but are not limited to, the following:

(1) - (5) (No change.)

(6) disallowing written or documentary evidence to be presented that was not exchanged by a deadline for exchange of such evidence pursuant to §1.15 of this chapter [title ] (relating to Prehearing Conference);

(7) disallowing the testimony of witnesses who were not listed by a deadline established for listing potential witnesses pursuant to §1.15 of this chapter [title] (relating to Prehearing Conference);

(8) (No change.)

(9) assessing costs against the noncompliant party as provided in the Texas Rules of Civil Procedure [TCRP].

(f) If an administrative law judge employed by the department fails to complete an assigned case before a proposal for decision or final order is rendered[, for cases heard for the department by SOAH, SOAH, or for cases heard by the department], the [Deputy] General Counsel[,] may appoint a substitute administrative law judge [on the hearings staff] to complete the assigned case without the necessity of duplicating any duty or function performed by the previous administrative law judge. The substitute administrative law judge shall review the existing record and need not repeat previous proceedings, but may conduct future proceedings as are necessary and proper to conclude the hearing and render a proposal for decision or final order.

§1.19.Reporters and Transcript.

(a) (No change.)

(b) Upon written request by any party, a transcript of the hearing shall be made [of the hearing by the office of hearings]. The cost of the preparation of such transcript shall be borne by the requesting party. The transcript shall be filed with the administrative law judge [assigned to the case] and made part of the record of the case. Parties may purchase copies of a transcript upon payment of applicable charges.

(c) (No change.)

(d) In addition to preparation of a transcript upon the request of a party, transcripts shall be prepared [by the office of hearings] when a final [agency] order is appealed to district court. The party appealing the final [agency] order to district court shall pay all or a part of the cost of preparation of the transcript of the hearing.

(e) (No change.)

(f) Any party wishing to record a [provide an independent means of recording any] contested case hearing independently shall file a motion requesting permission no later than five days before the hearing. The administrative law judge shall grant, deny, or prescribe conditions governing such recordings as justice and hearings decorum may require.

(g) (No change.)

§1.20.Rules of Evidence.

In addition to any other rules of evidence provided for in the APA [Act], Subchapter D, the following rules will apply to proceedings before the department.

(1) General rules. The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. Irrelevant, immaterial, or unduly repetitious evidence may be excluded. When necessary to ascertain facts not reasonably susceptible to proof under those rules, evidence not admissible under them may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs. The rules of privilege recognized by law shall be effective in department [agency] proceedings. Objections to evidentiary offers may be made and shall be noted in the record. No evidence shall be admissible in a proceeding if it is beyond the scope of the notice or amended pleadings of such proceeding.

(2) Representative documents. When a large number of similar documents is offered, the administrative law judge may limit those admitted to a number which are typical and representative, and may[, in his or her discretion,] require the abstracting of the relevant data from the documents and the presentation of the abstracts in the form of an exhibit; however, before making this requirement, the administrative law judge shall see that all parties of record or their representatives are given an opportunity to examine the documents from which the abstracts are made.

(3) - (4) (No change.)

(5) Uncontested proceedings. In any uncontested proceeding, the administrative law judge shall receive, without regard to the [legal] rules of evidence, any evidence of a form and character which would ordinarily be relied upon by prudent people in the conduct of their affairs (unless precluded by statute), including, without limitation, affidavits, documents, and other forms of hearsay testimony determined by the administrative law judge to be relevant.

(6) Official notice. The administrative law judge may take official notice of judicially cognizable facts and of generally recognized facts within an area of the department's specialized knowledge or expertise, and the special skills or knowledge of the department [agency] and its staff may be utilized in evaluating the evidence. Parties shall be notified of the material noticed, including any staff memoranda or data, and shall be afforded an opportunity to contest the material so noticed.

(7) (No change.)

§1.21.Conduct and Decorum.

(a) Every party, witness, attorney, or other representative shall comport himself in all department proceedings with dignity, courtesy, and respect for the department, the administrative law judge, and all other parties and participants. Attorneys shall observe and practice the standards of ethical behavior prescribed for the profession by the Texas Disciplinary Rules of Professional Conduct [Code of Professional Responsibility].

(b) (No change.)

§1.23.Subpoenas, Depositions, and Orders To Produce.

(a) Subpoenas. Upon the request of a party to a contested case and upon the showing of good cause, a subpoena may be issued by the commissioner[, the chief administrative law judge,] or an [the] administrative law judge employed by the department [hearing the case] as provided by the APA [Act], §2001.089.

(b) Depositions.

(1) Issuance of commissions. Upon the request of a party to a contested case [or the department] and the deposit of the appropriate fees, a commission to take a deposition shall be issued by the commissioner[, the chief administrative law judge,] or an [the] administrative law judge employed by the department [hearing the case], as provided by the APA [Act], §2001.094. A commission may be issued for the taking of an oral deposition or a deposition by written questions.

(2) (No change.)

(c) Order to produce. Upon the filing of a motion to produce in accordance with the APA [Act], §2001.091, the commissioner, the [deputy] general counsel, or the administrative law judge [hearing the case] may issue an order requiring the production of the requested items.

§1.24.Witness Fees.

(a) - (b) (No change.)

(c) Payment or reimbursement to witnesses under this section shall be made in accordance with the requirements of the APA [Act], §2001.103.

(d) - (e) (No change.)

§1.25.Filing of Exceptions, Briefs, and Replies.

(a) After the record of a hearing has closed, the administrative law judge [conducting the hearing, or an administrative law judge who has reviewed the record of the case] shall issue a proposal for decision [on the case], stating findings of fact, conclusions of law and making a recommendation to the commissioner on the case, or issue a final order, if authorized.

(b) For cases heard by an [a department] administrative law judge employed by the department, the proposal shall be issued within 30 working days from the date that the record of the case is closed. If the administrative law judge is unable to submit the proposal within the 30 days, the administrative law judge shall request an extension from the lead deputy general counsel. Neither the administrative law judge's failure to request an extension, the lead deputy general counsel's failure to grant the requested extension, nor the administrative law judge's failure to submit the proposal within the 30-day extended period shall in any way affect the validity of the proposal for decision or the commissioner's jurisdiction, consideration, or action relative to the proposal for decision.

(c) Any party [of record] may, within 15 days after the date of service of such proposal, file exceptions and briefs to the proposal with the hearings clerk. Replies to such exceptions and briefs may be filed with the hearings clerk within 15 days after the date for filing of such exceptions and briefs. Notwithstanding any provision of these rules to the contrary, for purposes of this section, the term "filed" means actually received by the hearings clerk. Any exceptions, briefs, or replies filed shall be [directed to the administrative law judge, filed with the hearings clerk, and] served on parties in accordance with §1.5 of this chapter [title] (relating to Filing and Service of Documents). A request for extension of time [within which] to file exceptions, briefs, or replies shall be [directed to the administrative law judge and] filed with the hearings clerk and[. A copy thereof shall be] served on all other parties [of record by the party making such request] in accordance with §1.5 of this chapter [title] (relating to Filing and Service of Documents). The administrative law judge shall promptly notify the parties of the ruling on any request for extension and shall allow additional time only in extraordinary circumstances where the interests of justice so require. A party may submit, and at the request of the administrative law judge shall submit, proposed findings of fact to be considered by the administrative law judge in the preparation of the proposal for decision.

(d) - (f) (No change.)

(g) Upon the expiration of the time for filing exceptions or replies to exceptions, or after such [replies and] exceptions and replies have been filed and considered, the administrative law judge's proposal for decision shall be considered by the commissioner, who shall render a decision and issue an order.

(h) In cases where the administrative law judge is authorized to issue a final order, the order will become final upon the expiration of the time for filing exceptions or replies to exceptions, or after such exceptions and replies have been filed and considered.

§1.26.Decisions and Orders.

(a) A final decision or order [issued by the commissioner ] in a contested case shall comport with all of the requirements of the APA [Administrative Procedure Act], §2001.141, and shall be served on parties in accordance with the APA, §2001.142 [that section].

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

§1.27.[Texas] Rules of Civil Procedure [Court To Apply].

Unless otherwise provided for in the APA [Act] or this chapter, the Texas Rules of Civil Procedure [and the Texas Rules of Civil Evidence] may be applied to govern procedural matters in proceedings before the department where, in the determination of [the commissioner or] the administrative law judge, such rules are practicable.

§1.30.Default Provisions.

(a) If a respondent [in an action before the department] fails to appear in person or by legal representative on the day and at the time set for hearing, the administrative law judge must, upon motion by the department's representative supported by proof the requirements of subsection (b) of this section have been met, [shall] enter a default judgment [in the matter] adverse to the respondent in which the allegations in the notice of hearing are deemed admitted as true without any requirement for additional proof. [who has failed to attend the hearing. For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the allegations against the respondent in the notice of hearing are deemed admitted as true without any requirement for additional proof to be submitted by the Complainant.]

(b) A [Any] default judgment granted under this section will be entered [on the basis of the allegations contained in the notice of hearing and] upon the proof of proper notice to the defaulting party [opponent]. For the purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code, §§2001.051, 2001.052, and 2001.054, and this section; such notice also shall include the following language in capital letters in at least 12-point boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU AS CONTAINED IN THIS NOTICE BEING ADMITTED AS TRUE, REGARDLESS WHETHER ADDITIONAL PROOF IS SUBMITTED.

§1.41.Private Real Property Rights Affected by Governmental Action.

(a) Purpose. The purpose of this section is to establish procedures whereby [the Texas Department of Agriculture (]the department[)] determines if private real property rights are affected by governmental action taken by the department or the commissioner of agriculture.

(b) Categorical Determination. Categorical determinations that no private real property interests are affected by the proposed governmental action obviates need for further compliance with the Private Real Property Preservation Act, Government Code, Chapter 2007 (Chapter 2007) [(the Act)]. The following activities and programs, and policies or regulations promulgated to implement them, do not affect private real property interests:

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

(3) Activities related to the general administrative practice and procedures of the department [agency];

(4) Requirements or activities relating to the implementation of the department's [agency's] promotional marketing or financial assistance programs;

(5) (No change.)

(6) Activities related to the issuance of licenses as part of the department's [agency's] farmers market certification program;

(7) (No change.)

(8) Activities related to the implementation of the department's [agency's] grant programs; and

(9) Activities related to the implementation of the following department [agency] regulatory programs:

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

(C) Commodity Programs including the Agricultural Protective Act, [Aquaculture,] Cooperative Marketing Association, Commodity Warehouse, Egg Quality, and Piece Rate programs;

(D) Weights and Measures programs including the [Fuel Quality and] Public Weigher program [programs];

(E) - (F) (No change.)

(c) Guide for Evaluating Proposed Governmental Actions. The following governmental actions are covered under Chapter 2007 [the Act]:

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

(d) Making a No Private Real Property Impact (No PRPI) Determination. If it is determined that there are no private real property interests impacted by a specific governmental action, the need for any further compliance with Chapter 2007 [the Act] is obviated.

(1) A No PRPI determination is determined by answering the following question: Does the covered governmental action result in a burden on private real property as that term is defined in Chapter 2007 [the Act]?

(2) (No change.)

(3) If the answer to each of the questions posed in subparagraphs (2)(A)-(E) of this subsection is NO, there is a No PRPI determination, and no further action pursuant to Chapter 2007 [the Act] is needed for the action. If the answer to any of the questions posed is YES, a Taking Impact Assessment is required.

(e) Taking Impact Assessment (TIA).

(1) Prior to Completion of TIA. Before a TIA is completed, it should be determined by the procedure established by subsections (b)-(c) of this section that:

(A) (No change.)

(B) the contemplated governmental action does not fall within the exceptions to Chapter 2007 [the Act]; and

(C) (No change.)

(2) Elements of the TIA. The specific elements that must be evaluated when proposing to undertake a governmental action that requires a TIA include the following:

(A) - (D) (No change.)

(E) whether engaging in the proposed governmental action will constitute a "taking" as determined by answering the following questions.

(i) - (ii) (No change.)

(iii) Is there a "taking" under Chapter 2007 [the Act] (25% diminution in value or property subject of the governmental action)?

(f) (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 22, 2022.

TRD-202203839

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 6, 2022

For further information, please call: (512) 936-9360

The repeals are proposed under Section 12.016 of the Texas Agriculture Code, which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Texas Agriculture Code and Section 2001.004 Texas Government Code, which allows state agencies to adopt rules of practice.

Texas Agriculture Code, Chapter 12 is affected by the repeals.

§1.8.Published Service in Nonrulemaking Proceedings.

§1.22.Rules of Discovery and Sanctions.

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 22, 2022.

TRD-202203840

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 6, 2022

For further information, please call: (512) 936-9360

4 TAC §§13.1 - 13.4, 13.6 - 13.15, 13.17, 13.18, 13.20

The Texas Department of Agriculture (Department) proposes amendments to 4 Texas Administrative Code §13.1, concerning Definitions; §13.2, concerning General Requirements; §13.3, concerning License and Permits; §13.4, concerning Bonding Requirements; §13.6, concerning Financial Statements; §13.7, concerning Fees; §13.8, concerning Capacity Changes; §13.9, concerning Voluntary Surrender of License (Voluntary Closeout); Going out of Business; §13.10, concerning Full Transfer or Sale of Warehouse Assets (New Owner); §13.11, concerning Record Retention; §13.12, concerning Warehouse Receipts; §13.13, concerning Customer Settlement Sheets; §13.14, concerning Temporary Storage; §13.15, concerning Shortage of Grain; §13.17, concerning Delivery of Stored Grain (Satisfaction of Storage Obligations); §13.18, concerning Depositor Claims on Warehouse Operator's Bond; and §13.20, concerning Suspension of a Grain Warehouse License.

The Department identified the need for the proposed amendments during its rule review conducted pursuant to Texas Government Code, §2001.039, the adoption for which can be found in the Review of Agency Rules section of this issue.

The proposed amendments include a change to the chapter's title to "Public Grain Warehouses," to use terminology contained in Chapter 14 of the Texas Agriculture Code (Code).

The proposed amendments to §13.1 remove several unnecessary definitions, add definitions for "open storage grain" and "terminal storage" to account for the use of these terms in this chapter, modify the definition of "temporary storage" to describe a particular location where grain might be stored, and make editorial changes to improve the rule's readability.

The proposed amendments to §13.2 remove redundant language involving requirements related to Department inspections, clarify compliance requirements for warehouse operators, and correct grammatical and spelling errors.

The proposed amendments to §§13.3 and 13.4 make editorial changes to improve the rules' readability and remove unnecessary or redundant language.

The proposed amendments to §13.6 removes outdated language on financial statement requirements for licensees.

The proposed amendments to §13.7 clarify that the fee for additional locations under combination public grain warehouse licenses applies to locations that have only one public grain warehouse, not just facilities, as facility is defined by section 14.022 of the Code as two or more public grain warehouses located in close proximity on the same general location.

The proposed amendments to §§13.8 - 13.15, §13.17, and §13.18 make editorial changes, remove unnecessary or redundant language, and correct spelling errors.

The proposed amendments to §13.20 clarify what would lead to the suspension of a grain warehouse license.

In addition, "warehouse receipt" and "grain warehouse receipt" are changed to "receipt" throughout the rules to standardize terminology and use a term defined in Chapter 14 of the Code. Similarly, the term "warehouse" and "grain warehouse" is changed to "public grain warehouse" throughout. The term "title" is also changed to "chapter" when referring to sections in this chapter, and rule headings are capitalized where they are not currently.

Mr. Philip Wright, the Administrator for Regulatory Affairs, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or local governments as a result of enforcing or administering the rules.

Mr. Wright has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit will be increased consumer protection through improved readability and clarity of the rules.

Mr. Wright has determined there are no anticipated economic costs to persons required to comply with the proposed amendments.

Mr. Wright has provided the following government growth impact statement, as required pursuant to Texas Government Code, §2001.0221. During the first five years the proposed amendments are in effect:

(1) no government programs will be created or eliminated;

(2) no employee positions will be created or eliminated;

(3) there will be no increase or decrease in future legislative appropriations to the Department;

(4) there will be no increase or decrease in fees paid to the Department;

(5) no new regulations will be created by the proposal;

(6) there will be no expansion, limitation, or repeal of existing regulation;

(7) there will be no increase or decrease in the number of individuals subject to the rules; and

(8) there will be no positive or adverse effect on the Texas economy.

The Department has determined the proposed rules will not affect a local economy within the meaning of Government Code, §2001.022, and will not have an adverse economic effect on small businesses, micro-businesses, or rural communities.

Written comments on the proposal may be submitted by mail to Mr. Morris Karam, Assistant General Counsel, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to morris.karam@texasagriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The amendments are proposed pursuant to Section 14.015 of the Texas Agriculture Code (Code), which provides the department with the authority to adopt rules necessary for the administration of requirements and procedures for the operation of public grain warehouses.

The code affected by the proposal is Texas Agriculture Code, Chapter 14.

§13.1.Definitions.

In addition to the definitions set out in the Texas Agriculture Code, Chapter 14, Subchapter A, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

[(1) Approved Warehouse--A public grain warehouse that has been inspected by the department and found to be suitable for the storage of grain.]

[(2) Authorized Personnel--Any person authorized by the warehouse operator to sign warehouse receipts or otherwise act on behalf of the warehouse operator.]

(1) [(3)] Code--Texas Agriculture Code.

[(4) Company Owned Temporary Storage--Grain that is stored on the ground or in a non-approved structure that:]

[(A) is owned by the warehouse in which it is stored; and]

[(B) is not covered by a negotiable warehouse receipt;]

[(5) Company Owned Terminal Storage--Grain that is owned by the warehouse and stored in another licensed warehouse.]

[(6) Current License--A license that is neither delinquent, expired, suspended or revoked.]

(2) [(7)] Daily position report [Position Report]--A daily continuous inventory that gives the amount of grain received for each kind and class of grain and type of storage obligation,[.] the [ The] amount of grain received, shipped out, or transferred (from one type of storage obligation to another) for each transaction or load, and [as well as] the total storage obligation of the warehouse at the close of each day.

[(8) Delinquent License--A license that has not been renewed and has been expired less than one year.]

(3) [(9)] License--A public grain warehouse license.

(4) [(10)] Manager--A person responsible for the operation of the warehouse.

(5) [(11)] Open storage grain [Storage Grain Temporary]--Grain that [is stored on the ground or in a non-approved structure that]:

(A) is received for storage by a public grain warehouse;

(B) is not covered by a [negotiable warehouse] receipt; and

(C) is not owned by the warehouse in which it is stored.

[(12) Open Storage Grain Terminal--Grain that:

(A) is received for storage by a public grain warehouse in another licensed warehouse;

(B) is not covered by a negotiable warehouse receipt; and

(C) is not owned by the warehouse in which it is stored.]

(6) [(14)] Outstanding receipt [ Warehouse Receipt]--A receipt that has not been returned to and canceled [cancelled] by the warehouse operator.

(7) [(13)] Partial inspection--Inspections including, but not limited to, the following inspections:

(A) of a new facility [inspection];

(B) under the terms of a suspension or probation;

(C) in response to a complaint that the warehouse operator has not complied with duties and obligations provided for by this chapter and the complaint is determined by the department to be valid; or[.]

(D) as a follow up inspection for the following purposes [to include]:

(i) shortages;

(ii) records not immediately available at headquarters or where access to [of] records was [were] refused during a previous inspection;

(iii) to ensure that record keeping discrepancies discovered during a previous inspection have been corrected; [or]

(iv) to monitor a suspension or probation; or

(v) to monitor termination of arrangements for storing, shipping, or handling of [or] grain under the Code [code].

(8) [(15)] Producer--The owner, tenant, or operator of land who has an interest in, and receives all or part of the proceeds from, the sale of grain produced on the land.

(9) [(16)] Received--Actual [actual] possession.

(10) [(17)] Temporary storage [Storage]--A place on the ground or non-approved structure that can be used to store grain [Grain that is stored on the ground or in a non-approved structure] with written permission from the department.

(11) Terminal storage--Storage of grain in a licensed warehouse that is either owned by another licensed warehouse or received for storage by another licensed warehouse.

[(18) Violation--A failure to comply with any provision or requirement of the code, Chapter 14, or a rule adopted under the authority of the code, Chapter 14, an order of the Commissioner of Agriculture or the Commissioner's designee, a Notice to Comply, a Notice of Suspension, or any other agency order authorized by law, or commission of an offense defined by the code, Chapter 14.]

§13.2.General Requirements.

In addition to any other obligations set out in the [Texas Agriculture] Code [(the code)], Chapter 14, [Subchapter A,] or this chapter, the warehouse operator shall be responsible for the general obligations of this section. In the event of a conflict between these general obligations and the obligations established elsewhere, the Code [code] shall control first and then the most specific provision which provides the greatest protection to the depositor or other customer of the warehouse. [These responsibilities are in addition to any provided in the code.]

(1) Warehouse operators shall comply with all [applicable provisions of the code, Chapter 14, this chapter, and all other] orders, notices, or requests for reports or other information from the department.

(2) The following people shall be considered to have authority to act on behalf of the warehouse operator: sole [Sole] proprietor, general or managing partner, chief financial officer, chief operating officer, president, vice president, treasurer, chief executive officer, manager, any person authorized to sign [warehouse ] receipts, or any person authorized to negotiate or sign contracts with producers of commodities regulated by the Code [code].

(3) In addition, the licensee shall also notify the department in writing within 10 days of any change in:

(A) - (C) (No change.)

(D) personnel authorized to sign [warehouse] receipts; or [and/or]

(E) (No change.)

(4) A public grain warehouse shall be considered suitable for storing, shipping, and handling grain if it meets the following requirements.

(A) It is weathertight [weather tight] to protect grain from the elements at all times except if approved for temporary storage by the department (see [See] §13.14 of this chapter [title] relating to Temporary Storage).

(B) A public grain warehouse shall keep open storage grain separate from non-public storage facilities. An exception would be when a permanent wall can be constructed to separate the two types of grain.

(C) - (D) (No change.)

(5) The warehouse operator shall be responsible for ensuring that all application materials, reports, or records are submitted or made available to the department [agency]. The action or lack of action of a third party shall not relieve the warehouse operator of these responsibilities.

(6) A licensee shall maintain a complete, correct, and legible daily position report, which shall be kept current as of the close of each business day.

(7) The daily position report shall declare all grain in the warehouse or in temporary storage as either receipted grain, open storage grain including that in terminal storage, or company-owned grain including that in terminal storage. Company owned grain may be reported as paid and unpaid, separately or combined, in the daily position report. Any change on the daily position report shall be supported by at least one of the following documents:

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

(C) a canceled [grain warehouse] receipt; or

(D) (No change.)

(8) An expired [warehouse] receipt is non-negotiable and the obligation transfers on the daily position report from [warehouse ] receipted grain to open storage grain. The depositor has the option to have a new [negotiable warehouse] receipt issued after satisfying accrued storage and handling charges[,] or to leave as an open storage obligation. The licensee has the option to offset any accrued storage and handling charges. Before the offset, the licensee shall provide 30-days [30 days] advance notice by certified mail sent to the last known address of the depositor. Such notice shall contain a statement of account including, but not limited to, the kind of grain, quantity, current market price, and accrued storage and handling charges. Storage charges may be calculated for the ten-year term at the present rate on the day of the offset, unless the storage rate is indicated on the [warehouse] receipt.

(9) - (10) (No change.)

[(11) A reasonable time is defined as regular business hours of the grain warehouse. If the warehouse is a facility that has no employees on site, then the regular business hours of the main headquarters will be used. If a facility does not have regular hours, then 8:00 a.m. to 5:00 p.m., Monday thru Friday will be considered their regular hours.]

[(12) Grain Warehouse records must be made available for immediate inspection at the request of the inspector.]

[(13) Access to records of businesses operated from the same location that deal in grain must be made available for immediate inspection at the request of the inspector.]

(11) [(14)] Records related to multiple business operations at the same location must be kept separately [separate] and not mixed with public grain warehouse records.

(12) [(15)] Records must have a legend, code sheet, or key list showing the meaning of any abbreviations or headings in the main record keeping system sufficient to allow inspection of the records without further interpretation by warehouse operator, authorized agent, or other employee.

(13) [(16)] Records must be legible, correct, and accurate.

(14) [(17)] Grain amount, when required, shall be stated in the unit measure for the commodity in common use in the industry[.] (i.e., bushels, cwt., or lbs.).

(15) [(18)] Any warehouse with a 3.0% or greater variance between the measured grain position and the grain position as established by the daily position report, on the date of measurement, may be suspended until the shortage is corrected. During the suspension, the department is authorized to seize any unused receipts, the daily position report, and the warehouse license and hold same until the department is satisfied that the shortage is corrected.

§13.3.License and Permits.

(a) A person required to be licensed shall apply on a form prescribed by the department and in addition shall submit a continuous bond, financial statement, verification of insurance, [and if necessary] a successor's agreement if necessary, and the fee(s) as required by §13.7 of this chapter [title ] (relating to Fees). All forms may be obtained from the department.

(b) Unless otherwise approved as a combination license required by the [Texas Agriculture] Code [(the code)], §14.022, a person shall obtain a separate license for each location.

(c) The purchaser of a licensed public grain warehouse facility shall assume all outstanding warehouse obligations, including, but not limited to, [warehouse] receipts or open storage accounts up to the amount of grain in storage at the time of purchase.

(d) If a license has expired, the [grain] warehouse operator, upon request, shall surrender all unused [warehouse ] receipts to the department.

(e) (No change.)

(f) An application [individual, corporate or partnership applicant] may be denied [a license] if the applicant has committed a violation of the Code [code ], Chapter 14, or had a public grain warehouse license revoked[,] within two years prior to applying for a license. For business applicants, this not only includes the business entity itself but also all corporate or company officers, all partners, and all stockholders or shareholders who own, hold, or otherwise control 25% or more of the corporation's or company's stock or shares.

(g) A license [to operate a public grain warehouse, issued under the code, Chapter 14 and these rules,] is not transferable.

(h) A separate insurance policy is required for each individual facility unless it is [not] part of a combination.

(i) - (k) (No change.)

(l) A license that has not yet expired may be renewed when accompanied by the required renewal form or application,[;] continuous bond, financial statement,[;] verification of insurance, and the fee(s) required by §13.7 of this chapter [title] (relating to Fees). If a [person's] license has been expired for one year or longer, the licensee [person] may not renew the license but must comply with the requirements and procedures for obtaining an original license.

[(m) A corporate or partnership applicant includes the business entity itself, all corporate or company officers, all partners, and all stockholders or shareholders who own, hold, or otherwise control 25% or more of the corporation's or company's stock or shares. Partnership in this section means any form of partnership and corporate means any business entity that is not a partnership.]

§13.4.Bonding Requirements [requirements].

(a) The bond, required by the [Texas Agriculture] Code, §14.022, shall be a single continuous bond[,] issued by a single corporate surety licensed to do business in the State of Texas except for:

(1) mid-year [mid year] capacity changes, provided that the separate bond or bonds obtained for such capacity changes are combined into a single bond prior to or upon renewal of the license; and

(2) temporary storage that requires an additional bond will be handled the same way as a mid-year [mid year] capacity change.

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

§13.6.Financial Statements.

(a) A warehouse operator shall file with the department a financial statement showing the net worth of the operator's grain warehouse business as part of an [the operator's] application for a new license and thereafter shall file with the department a new financial statement, reflecting the net worth of the operator's grain warehouse business at the end of the operator's most recent fiscal year, no later than the 90th day following the end of the operator's most recent fiscal year.

(b) The [Through March 31, 2011, the financial statement required by subsection (a) of this section must be notarized and on the most current version of department form RGW-306 Financial Statement, unless the statement is a reviewed or audited financial statement prepared and signed by an independent certified public accountant. Effective April 1, 2011, the] financial statement required by subsection (a) of this section must be a reviewed or audited financial statement prepared and signed by an independent public accountant.

(c) - (g) (No change.)

§13.7.Fees.

(a) Single public grain warehouse license. The annual and renewal fee for a single public grain warehouse license is $500.00.

(b) Combination public grain warehouse license. The annual and renewal fee for a combination public grain warehouse license is $500.00 for the headquarters location and $300.00 for each additional public grain warehouse or facility location.

(c) - (d) (No change.)

§13.8.Capacity Changes.

(a) (No change.)

(b) An increase of total storage will be complete after the following requirements are met.

(1) (No change.)

(2) The department's designation [(number or lettering) ] of storage units (numbering or lettering) will be used for formal notices.

(3) - (5) (No change.)

(6) Capacity changes are subject to inspection fees provided in §13.7 of this chapter [title] (relating to Fees).

(7) (No change.)

(8) Requirements related to temporary storage are provided in §13.14 of this chapter [title] (relating to Temporary Storage).

(c) A decrease of total storage capacity will be completed after the following requirements are met:

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

(3) Capacity changes are subject to inspection fees provided in §13.7 of this chapter [title].

§13.9.Voluntary Surrender of License (Voluntary Closeout); Going out of Business

In order to close out a public grain warehouse license, the following requirements must be met.

(1) All outstanding [warehouse] receipts must be canceled [cancelled] by the warehouse operator.

(2) - (3) (No change.)

§13.10.Full Transfer or Sale of Warehouse Assets (New Owner).

(a) All outstanding [warehouse] receipts must be canceled [cancelled] by the warehouse operator and reissued by the new owner.

(b) - (d) (No change.)

§13.11.Record Retention.

(a) (No change.)

(b) Daily position reports [Position Report] must be kept three years after the close out inspection is complete.

(c) - (g) (No change.)

§13.12.[Warehouse] Receipts.

(a) A warehouse operator shall not issue a [warehouse ] receipt to anyone other than a depositor [as defined by the Texas Agriculture Code (the code) §14.001(a), (1) and the code, §14.054 (b)].

(b) A warehouse operator shall not issue a [warehouse ] receipt to a bank or financial institution unless the bank or institution fulfills the requirements of a depositor.

(c) (No change.)

(d) The warehouse operator shall not store, maintain, keep, or otherwise be in possession of a [an issued] receipt that has not been canceled [cancelled ] except receipts made out in the name of the warehouse operator.

(e) Any receipt returned to the [grain] warehouse operator must be canceled at the time it is received. The warehouse operator shall write the word "Canceled" ["Cancel" ] across the front of the receipt.

(f) A warehouse operator shall not issue a [warehouse ] receipt for grain that is approved for temporary storage.

(g) Receipted [Warehouse receipted] grain must be kept in storage by the warehouse operator until the warehouse receipt is canceled.

§13.13.Customer Settlement Sheets.

(a) Multiple customer settlement sheets must be serially numbered and sequentially used.

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

§13.14.Temporary Storage.

(a) A request to approve temporary storage is a requested inspection and is subject to an inspection fee found in §13.7 of this chapter [title] (relating to Fees).

(b) A warehouse operator must give written notice to the department that temporary storage will be needed [and shall be submitted to the department] prior to use of the temporary storage. The notice shall contain the following information:

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

(c) A separate log from the daily position report [Daily Position Report] shall be kept for temporary storage.

(d) - (k) (No change.)

(l) Insurance requirements in §13.5 of this chapter [title] (relating to Insurance Requirements) must be met.

(m) Bonding requirements in section §13.4 of this chapter [title] (relating to Bonding Requirements) must be met.

§13.15.Shortage of Grain.

(a) - (b) (No change.)

(c) A warehouse operator may correct shortages by spot purchasing and delivery[,] or transferring from company-owned [company owned,] grain of the same type with equal or higher value[.] (i.e., class and grade, [-- ] including subclass for wheat).

(d) - (f) (No change.)

§13.17.Delivery of Stored Grain (Satisfaction of Storage Obligations).

A warehouse operator must ship grain, at the request of the receipt holder who returns a [warehouse] receipt with orders to ship, within the time period specified by the shipping order, or within the time period specified by written agreement that clearly supersedes [supercedes] the shipping order. A written agreement does not supersede [supercede] a shipping order if it was signed prior to receipt of the shipping order and clearly states that the written agreement shall control time of shipment while the agreement is in effect to the exclusion of any shipping orders. In the absence of a time period for shipment in the shipping order or [in] the absence of a written agreement, grain must be shipped within a reasonable time, not to exceed 48 hours unless approved by the department.

§13.18.Depositor Claims on Warehouse Operator's Bond.

(a) Price of the commodities for the purpose of calculating a claim on a bond becomes fixed the date the department becomes aware or is notified of the public grain warehouse failure.

(b) (No change.)

(c) Requirements to submit claims are as follows.

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

(3) Claims must be supported by [grain warehouse] receipts, scale weight tickets, or any other information pertinent to the claim and must accompany the form prescribed by the department.

§13.20.Suspension of a [Grain Warehouse] License.

The license of a [A] warehouse operator that does not submit the required fees, application, bonding instrument, or certificate of insurance will be suspended automatically and remain suspended until such requirements [the required documents] are received by the department.

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 22, 2022.

TRD-202203849

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: November 6, 2022

For further information, please call: (512) 936-9360

CHAPTER 38. TRICHOMONIASIS

4 TAC §§38.1 - 38.4, 38.6, 38.8

The Texas Animal Health Commission (commission) proposes amendments to Title 4, Texas Administrative Code, Chapter 38, §§38.1 - 38.4, 38.6 and 38.8, concerning "Trichomoniasis".

BACKGROUND AND SUMMARY OF PROPOSED AMENDMENTS

The commission proposes amendments to Chapter 38 to clarify, correct and update information and procedures regarding the Trichomoniasis program and testing requirements.

Bovine Trichomoniasis is a sexually transmitted disease of cattle caused by the organism Trichomonas foetus. The trichomoniasis organism is found on the surface of an infected bull's penis and on the inside of the prepuce. Once a bull is infected, it is infected for life and is a reservoir for the organism. An infected bull will not show symptoms but will physically transmit the organism to female cattle during the breeding process. Clinical indications of the presence of trichomoniasis in female cattle include reduced pregnancy rates, changes in pregnancy pattern (shift towards more late calving cows), pus in the uterus (pyometras) and higher rates of abortion throughout the pregnancy.

Unlike bulls, Trichomoniasis infected females will show an immune response to the presence of the Trichomonas foetus organism in their reproductive tract. Antibodies are produced both within the reproductive tract and blood which helps in the clearance of the infection in many exposed females. The immunity is short-lived and cattle that have previously cleared the infection can become re-infected if exposed to the organism during a following breeding. Infected female cattle can remain infected throughout their pregnancy, deliver a live calf and be a potential threat in spreading the disease in the next breeding season.

The Bovine Trichomoniasis Working Group (TWG) had an annual review on May 24, 2022, to evaluate the effectiveness of the current program. The TWG discussed the program overview to date, the management of infected herds, and the need for possible revisions to the program.

The TWG recommends that five changes be made in the Trichomoniasis control program.

The first is to require all bulls that are part of a herd one year after the date the hold order or quarantine on the herd was released shall be officially tested for Trichomoniasis. This recommendation addresses the issue of repeat Trichomoniasis positive herds. Through May 2022, 6 of the 31 herds, for calendar year 2022, testing positive for Trichomonas foetus are herds with repeat infections. Since 2020, 33 of the 209 Trichomoniasis positive herds are herds with repeat infections.

The second recommendation is to increase the transit timeframe for certified veterinarians to submit the Trichomoniasis sample submitted in phosphate buffered saline (PBS) from 96 hours to 120 hours after collection. Studies have shown that the extended travel time for samples submitted in PBS did not significantly affect the sensitivity of Reverse Transcriptase PCR tests conducted on these samples. TAHC staff also recommend that sterile saline be added as a medium that can be used for submitting Trichomoniasis samples and recommends transit times match those of phosphate buffered saline. Sterile saline is readily available in veterinary clinics and is a more cost-effective solution

The third recommendation was to approve pooling of samples submitted in phosphate buffered saline. Experts from Texas A&M Veterinary Medical Diagnostic Laboratory (TVMDL) reported that PCR testing conducted on samples submitted in phosphate buffered saline was found to be a more sensitive test than the traditional PCR test conducted on samples submitted via In-Pouch. Pooled sample results with a Cycle Threshold (CT) value of 38 or lower are interpreted as positive. The cutoff for single samples is a CT value of 35. According to data presented, raising the cutoff by three cycles compensates for the reduction in sensitivity when samples are pooled. If a pooled sample comes up positive, PCR testing is conducted on each individual sample in the pool using the cutoff of 35. TAHC staff also recommend that sterile saline be added as a medium that can be used for submitting Trichomoniasis samples that can be pooled by the diagnostic laboratory. Pooling is often more cost effective for producers and it is an adequate way to screen herds. Some sensitivity is lost when pooling samples, but if a disease is detected, individual tests can be conducted.

The fourth recommendation would clarify the current rule and set a definitive timeframe for untested bulls that are purchased to change status from a cull/slaughter bull to a breeding bull. These bulls are moved under a Hold Order for testing to change the animal's slaughter bull status to a breeding bull. The recommendation is that these bulls must be tested within seven days of the purchase date.

The fifth recommendation was to change terminology from "Trichomoniasis approved feedyard" to "Trichomoniasis certified facility" to reduce confusion. The term "approved feedyard" has a different application and requirements that are more commonly associated with disease control efforts related to Tuberculosis and Brucellosis.

SECTION-BY-SECTION DISCUSSION

The proposed amendment to §38.1, Definitions, amends the definition of "Certified Veterinarian" and "Official Laboratory Pooled Trichomoniasis test samples." The term "Certified Veterinarian" was amended to add that a certified veterinarian must meet the requirements and have authorized personnel status as listed in 4 Tex. Admin. Code Chapter 47. The term "Official Laboratory Pooled Trichomoniasis test samples" was updated to clarify that the laboratory can pool samples for polymerase chain reaction (PCR) testing only. Other non-substantive updates were made to the section to improve understanding and readability.

The proposed amendments to §38.2, General Requirements, clarifies Trichomoniasis testing requirements and timeframes. The amendments to §38.2(c) specify that requests for confirmatory testing be in writing to the TAHC Region Director and that confirmatory testing must be conducted within 30 days after the date of the original test, Other non-substantive organizational changes to improve readability were made to the subsection. To reduce confusion, the amendment to §38.2(d)(2) changes the term "approved feedlot" to "Trichomoniasis certified facility" because the term "approved feedyard" has a different application and requirements that are more commonly associated with disease control efforts related to Tuberculosis and Brucellosis. The amendment to §38.2(d)(3) specifies a timeframe, seven days, to initiate the test for untested bulls purchased to change status from a slaughter bull to a breeding bull.

The proposed amendments to §38.3, Infected Herds, corrects and clarifies terminology, and requires additional testing for bulls that are part of an infected herd. The amendment to §38.3(a) corrects terminology and clarifies that breeding bulls "which test positive for Trichomoniasis" as opposed to "have been disclosed as reactor" may be retested under certain conditions. The same provision clarifies that to be released from hold order or quarantine, a bull that is retested must have two consecutive negative tests by PCR within 30 days of the initial test. The proposal adds §38.3(e) to require all bulls that are part of a herd one year after the date the hold order or quarantine on the herd was released to be officially tested for Trichomoniasis. The provisions that follow the addition were renumbered accordingly. Multiple amendments to Chapter 38, including §38.2, clarifies that PCR testing is conducted as opposed to RT PCR. Other non-substantive updates or grammatical corrections were made to the section to improve readability.

The proposed amendments to §38.4, Certified Veterinary Practitioners, changes §38.4(a) to align with the amended definition of "Certified Veterinarians" in §38.1 and authorized personnel status requirements in 4 TAC Chapter 47.

The proposed amendments to §38.6, Official Trichomoniasis Tests, changes §38.6(1)(B) to (1) allow Trichomoniasis samples to be submitted in sterile saline, in addition to phosphate buffered saline, (2) increases transport time to the laboratory from 96 to 120 hours, and (3) recognizes that Trichomoniasis samples pooled at the laboratory at a ratio of up to five individually collected samples pooled for one test may qualify as official tests. To promote understanding and compliance, the amendment specifies that veterinary practitioners may not submit pooled samples for an official test.

The proposed amendments to §38.8, Herd Certification Program--Breeding Bulls, provides and italicizes the full scientific name of Trichomoniasis, Trichomonas foetus. The proposed amendments update the term throughout Chapter 38.

FISCAL NOTE

Ms. Myra Sines, Chief of Staff of the Texas Animal Health Commission, determined for each year of the first five years the rules are in effect, there will be no additional fiscal implications for state or local government because of enforcing or administering the proposed rules as commission employees currently allocated to these activities will continue to administer and enforce these rules as part of their current job duties and resources.

The effect on state government for each year of the first five years the proposed amendments are in effect is null. Ms. Sines has determined that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the rule amendments.

PUBLIC BENEFIT NOTE

Ms. Sines determined that for each year of the first five years the rules are in effect, the anticipated public benefit is reduced incidence of trichomoniasis reinfection in Texas cattle herds and added flexibility and cost efficiencies for regulatory testing procedures.

TAKINGS IMPACT ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed amendments relate to the handling of animals, including requirements concerning testing, movement, inspection, identification, reporting of disease, and treatment pursuant to 4 TAC §59.7. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a takings.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Ms. Sines has determined that there will be a cost for producers with Trichomoniasis infected herds to test all bulls one year after the date the quarantine or hold order was released for the herd.

Ms. Sines has also determined that there may be an adverse economic effect on small businesses, or micro-businesses. Those impacts are the same as adverse economic impacts to the persons that are required to test all bulls in their herd one year after the date the Trichomoniasis quarantine or hold order was released. However, most herd owners with previously infected bulls are conducting yearly PCR testing prior to reintroducing them to the herd. There are currently 144,000 herds within the State of Texas and Commission data indicates there are 108 herds currently under quarantine or hold order as of the preparation of this analysis. The proposed rule requiring an annual retest may have an adverse impact on these livestock owners. The commission believes that most if not all of these livestock owners qualify as a small or micro-business.

It is difficult to predict the economic impact the proposed rule would have on the herds because herd size, facility size, equipment, animal husbandry, handling practices and business models vary per facility. Because veterinary pricing varies significantly (flat rate, graduated rates and herd call rates) the agency cannot quantify how much it will cost a livestock owner to test the owner's bulls. However, based on TVMDL costs of $25 per individual sample or $30 for a pooled sample of five, plus accession fees, and information obtained from private veterinary practitioners, the commission estimates that each test will cost approximately $75 to $125. This is an assurance test for the producer and the producer's neighbor to ensure that the herd is clean and the disease has been eradicated. The cost of testing at 12 months is offset by the cost of having Trichomoniasis in the herd. Assessment of the cost of keeping a chronic Trichomoniasis infection in a herd shows that 14% of the total pounds sold at weaning was lost due to effects of the disease, such as reduced pregnancy rates, later calving cows, and higher rates of abortion in infected herds.

As such, alternatives were considered to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

One alternative was to do nothing. This alternative was rejected because the current rules and science associated with Trichomoniasis indicate there is an increased risk for herd reinfection and disease spread if previously positive herds are not actively monitored and tested for Trichomoniasis following the release of a disease quarantine or hold order. The limitation of treatments and testing for female cattle requires additional surveillance for herds where the disease was detected.

Another alternative was to consider alternative testing timeframes after the quarantine release. The commission considered 6, 12 and 18 months. To control Trichomoniasis in an infected herd, positive bulls must be identified and removed and sexual rest must be enforced for suspected and exposed female cattle following the current breeding season. The gestation period of a cow ranges from 279 to 287 days. After gestation or an abortion, open cows cannot be considered a lower risk until the female has had 120 to 150 days or more of sexual rest. Given this timeframe and management practices of typical herds, testing at 12 months coincides with the time period when bulls are handled to prepare them for the breeding season. Moreover, 6 months was too short of a timeframe to allow for potential reinfection of bulls from a positive female and 18 months would likely occur in the middle of a typical breeding season. As such, the 6- and 18-month timeframes were rejected.

Another alternative was to require herds to test each bull and not allow pooled samples due to the previous infection. The proposed rule allows for pooled sampling because of the cost savings associated with pooled samples. A single test at TVMDL cost $25 plus accession fees. As such, five individual tests would cost $125 plus fees. Alternatively, five pooled tests cost $30 plus fees. The proposed rule allows for pooled samples because a $95 savings is more cost effective for livestock owners, especially for those with herds that are negative.

Another alternative considered by the TWG was to require two annual tests following release. While two annual tests may be preferred, this alternative would increase testing costs and was rejected because the gestation term plus the 120-150 days of sexual rest for female cattle would provide a balanced approach to disease mitigation.

The commission determined that there will be a minimal effect on rural communities, since the economic contribution of Trichomoniasis infected cattle herds is not a significant driver of economic activities. As the number of herds with infected bulls is less than .00075, in an effort to maintain this low impact and the low percentage, the agency has decided to move forward to contain and minimize the spread of Trichomoniasis from infected and re-infected herds.

REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES

The commission has determined that this proposal is not a "major environmental rule" as defined by Government Code §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

LOCAL EMPLOYMENT IMPACT STATEMENT

The proposed amendments will not affect a local economy.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with the requirements of Texas Government Code §2001.0221, the commission prepared the following Government Growth Impact Statement. For each year of the first five years the proposed rules would be in effect, the commission determined the following:

1. The proposed rules will not create or eliminate a government program;

2. Implementation of the proposed will not require the creation of new employee positions or the elimination of existing employee positions;

3. Implementation of the proposed rules will not increase future legislative appropriations to the Commission;

4. The proposed rules will not increase or decrease the fees paid to the Commission;

5. The proposed rules will create a new regulation as it requires testing and a specified time frame for completion;

6. The proposed rules will expand existing rules, but will not otherwise limit or repeal an existing regulation;

7. The proposed rules will not increase the number of individuals subject to the regulation; and

8. The proposed rules will not adversely affect this state's economy.

COST TO REGULATED PERSONS

The proposed amendments to Chapter 38 may impose a cost on a regulated person, if the person is regulated because confirmation of a sexually transmitted disease, Trichomoniasis, in the person's herd. The proposed rules will increase costs for these herds by requiring an annual test on bulls one year after movement restrictions are released, however, the proposal also reduces costs by approving the use of phosphate buffered saline for pooled samples and by approving the use of sterile saline for collection of samples for both individual and pooled diagnostic laboratory testing. Approving the addition of sterile saline as an option for sample submission and the allowance of pooled samples, allows for cost savings as compared to the addition of a test without these allowances.

Although these cost-savings amendments are not required by Texas Government Code §2001.0045 because the proposed rules are necessary to protect cattle from Trichomoniasis, which is a disease the Commission determined requires control or eradication pursuant to Texas Agriculture Code Section 161.041, they are important to note. The rules do not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state. Pursuant to Section 2001.0045 of the Texas Government Code, therefore, it is unnecessary to amend or repeal any other existing rule.

There is a potential for $95 in savings in testing five head using pooling versus not pooling. The savings from use of PBS over InPouch is due to the higher cost of the In Pouch. We anticipate that the use of sterile saline will be well received by most veterinarians and cattle producers due to the availability and lower cost as compared to the In Pouch and PBS. Information reviewed by TAHC staff showed InPouch testing is $110.67 per box of 10 equating to $11.07 per sample, Sterile saline is $4.80 per 1000mL bottle, with five mL per sample equates to $0.19 per sample. The testing prices do not include shipping and handling costs.

REQUEST FOR COMMENT

Written comments regarding the proposed amendments may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax at (512) 719-0719 or by e-mail to comments@tahc.texas.gov. To be considered, comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register. When faxing or emailing comments, please indicate "Comments on Chapter 38-Trichomoniasis" in the subject line.

STATUTORY AUTHORITY

The amendments are proposed under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code. The commission is vested by statute, §161.041(a), with the requirement to protect all livestock, domestic animals, and domestic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock.

Pursuant to §161.005, entitled "Commission Written Instruments", the commission may authorize the executive director or another employee to sign written instruments on behalf of the commission. A written instrument, including a quarantine or written notice signed under that authority, has the same force and effect as if signed by the entire commission.

Pursuant to §161.006, entitled "Documents to Accompany Shipment", if required that a certificate or permit accompany animals or commodities moved in this state, the document must be in the possession of the person in charge of the animals or commodities, if the movement is made by any other means.

Pursuant to §161.0417, entitled "Authorized Personnel for Disease Control", a person, including a veterinarian, must be authorized by the commission in order to engage in an activity that is part of a state or federal disease control or eradication program for animals.

Pursuant to §161.046, entitled "Rules", the commission may adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to §161.048, entitled "Inspection of Shipment of Animals or Animal Products", the commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. An agent of the commission is entitled to stop and inspect a shipment of animals or animal products being transported in this state in order to determine if the shipment originated from a quarantined area or herd; or determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or noncommunicable disease.

Pursuant to §161.054, titled "Regulation of Movement of Animals; Exception", the commission, by rule, may regulate the movement of animals. The commission may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved. The commission is authorized, through §161.054(b), to prohibit or regulate the movement of animals into a quarantined herd, premises, or area. The Executive Director of the commission is authorized, through §161.054(d), to modify a restriction on animal movement, and may consider economic hardship.

Pursuant to §161.056(a), titled "Animal Identification Program", the commission, to provide for disease control and enhance the ability to trace disease-infected animals or animals that have been exposed to disease, may develop and implement an animal identification program that is no more stringent than a federal animal disease traceability or other federal animal identification program. Section 161.056(d) authorizes the commission to adopt rules to provide for an animal identification program more stringent than a federal program only for control of a specific animal disease or for animal emergency management.

Pursuant to §161.061, titled "Establishment", if the commission may establish a quarantine against all or the portion of a state, territory, or country in which a disease listed in rules adopted under Section 161.041. Section 161.061(b), a quarantine established may extend to any affected area, including a county, district, pasture, lot, ranch, farm, field, range, thoroughfare, building, stable, or stockyard pen. Section 161.061(c), the commission may establish a quarantine to prohibit or regulate the movement of infected animals and the movement of animals into an affected area. Section 161.061(d) allows the commission to delegate its authority to establish a quarantine to the Executive Director.

Pursuant to §161.065, titled "Movement from Quarantined Area; Movement of Quarantined Animals", the commission may provide a written certificate or written permit authorizing the movement of animals from quarantined places. If the commission finds animals have been moved in violation of an established quarantine or in violation of any other livestock sanitary law, the commission shall quarantine the animals until they have been properly treated, vaccinated, tested, dipped, or disposed of in accordance with the rules of the commission.

Pursuant to §161.101, entitled "Duty to Report", a veterinarian, a veterinary diagnostic laboratory, or a person having care, custody, or control of an animal shall report the existence of the diseases, if required by the commission, among livestock, exotic livestock, bison, domestic fowl, or exotic fowl to the commission within 24 hours after diagnosis of the disease.

Pursuant to §161.113, entitled "Testing or Treatment of Livestock", if the commission requires testing or vaccination under this subchapter, the testing or vaccination must be performed by an accredited veterinarian or qualified person authorized by the commission. The state may not be required to pay the cost of fees charged for the testing or vaccination. The commission may require the owner or operator of a livestock market to furnish adequate equipment or facilities or have access to essential equipment or facilities within the immediate vicinity of the livestock market.

Pursuant to §161.114, entitled "Inspection of Livestock", an authorized inspector may examine livestock consigned to and delivered on the premises of a livestock market before the livestock are offered for sale. If the inspector considers it necessary, the inspector may have an animal tested or vaccinated. Any testing or vaccination must occur before the animal is removed from the livestock market.

Pursuant to §161.148, titled "Administrative Penalty", the commission may impose an administrative penalty on a person who violates Chapter 161 or a rule or order adopted under Chapter 161. The penalty for a violation may be in an amount not to exceed $5,000, effective September 1, 2021.

CROSS-REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by this proposal.

§38.1.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.

(1) Accredited Veterinarian--A licensed veterinarian who is approved to perform specified functions required by cooperative state-federal disease control and eradication programs pursuant to Title 9 of the Code of Federal Regulations, Parts 160 and 161.

(2) Affected Herd--A [Any] herd in which any cattle have been classified as Trichomonas foetus [Trichomonas foetus] positive on an official test and [which] has not completed the requirements for elimination of the disease from the herd.

(3) Cattle--All dairy and beef animals (genus Bos), excluding bison (genus Bison).

(4) Certified Veterinarians--Veterinarians certified with, and approved by the commission to collect Trichomoniasis samples for official Trichomoniasis testing and to perform any other official function under the Trichomoniasis program. To be a certified veterinarian, a veterinarian must meet the requirements and have authorized personnel status as listed in Chapter 47 of this title (related to Authorized Personnel).

(5) Commission--The Texas Animal Health Commission, or its designee.

(6) Executive Director--The Executive Director of the Texas Animal Health Commission, or the Executive Director's [his] designee.

(7) Exempt Cattle (from testing requirements)--Cattle that have been physically rendered incapable of intromission at a facility recognized by the commission.

(8) Exposed Cattle--Cattle that are part of an affected herd or cattle that have been in contact with Trichomoniasis infected cattle.

(9) Herd--

(A) All cattle under common ownership or supervision or cattle owned by a spouse that are on one premise; or

(B) All cattle under common ownership or supervision or cattle owned by a spouse on two or more premises that are geographically separated, but on which the cattle have been interchanged or where there has been contact among the cattle on the different premises. Contact between cattle on the different premises will be assumed unless the owner establishes otherwise and the results of the epidemiological investigation are consistent with the lack of contact between premises; or

(C) All cattle on common premises, such as community pastures or grazing association units, but owned by different persons. Other cattle owned by the persons involved which are located on other premises are considered to be part of this herd unless the epidemiological investigation establishes that cattle from the affected herd have not had the opportunity for direct or indirect contact with cattle from that specific premises. Approved feedlots and approved pastures are not considered to be herds.

(10) Herd Test--An official test of all non-virgin bulls in a herd.

(11) Hold Order--A document restricting movement of a herd, unit, or individual animal pending the determination of disease status.

(12) Infected Cattle--Any cattle determined by an official test or diagnostic procedure to be infected with Trichomoniasis or diagnosed by a veterinarian as infected.

(13) Infected Herd--The non-virgin bulls in any herd in which any cattle have been determined by an official test or diagnostic procedure to be infected with Trichomoniasis or diagnosed by a veterinarian as being infected.

(14) Movement Permit--Authorization for movement of infected or exposed cattle from the farm or ranch of origin through marketing channels to slaughter or for movement of untested animals to a location where the animals will be held under hold order until testing has been accomplished.

(15) Movement Restrictions--A "Hold Order," "Quarantine," or other written document issued or ordered by the commission to restrict the movement of livestock or exotic livestock.

(16) Negative--Cattle that have been tested with official test procedures and found to be free from infection with Trichomoniasis.

(17) Official Identification/Officially Identified--The identification of livestock by means of an official identification device, official eartag, registration tattoo, or registration brand, or any other method approved by the commission and/or Administrator of the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) [APHIS] that provides unique identification for each animal. Official identification includes USDA alpha-numeric metal eartags (silver bangs tags), 840 Radio-frequency identification (RFID) [RFID] tags, 840 bangle tags, official breed registry tattoos, and official breed registry individual animal brands.

(18) Official Trichomoniasis Test--A test for bovine Trichomoniasis, approved by the commission, applied and reported by TVMDL or any other laboratory approved as an official laboratory by the commission. The test document is valid for 60 days, provided the bull is isolated from female cattle at all times, and may be transferred within that timeframe with an original signature of the consignor.

(19) Official Laboratory Pooled Trichomoniasis test samples--Up to five samples individually collected by a veterinarian and packaged and submitted to an official laboratory which can then pool the samples for polymerase chain reaction (PCR) testing only.

(20) Positive--Cattle that have been tested with official test procedures and found to be infected with Trichomoniasis.

(21) Quarantine--A written commission document or a verbal order followed by a written order restricting movement of animals because of the existence of or exposure to Trichomoniasis. The commission may establish a quarantine on the affected animals or on the affected place. The quarantine of an affected place may extend to any affected area, including a county, district, pasture, lot, ranch, farm, field, range, thoroughfare, building, stable, or stockyard pen. The commission may establish a quarantine to prohibit or regulate the movement of any article or animal that the commission designates to be a carrier of Trichomoniasis and/or an animal into an affected area, including a county district, pasture, lot, ranch, farm, field, range, thoroughfare, building, stable, or stockyard pen.

(22) Registered Breeding Cattle--Cattle that belong to a breed registry, which maintains an official list of animals within a specific breed for which there is an association of unique identification for each head of cattle.

(23) Test-Eligible Cattle--All sexually intact non-virgin male cattle and all sexually intact male cattle which have erupting or erupted permanent incisor teeth (or older), which are being sold, leased, gifted or exchanged in the state of Texas for breeding purposes.

(24) Trichomoniasis--A venereal disease of cattle caused by the organism Trichomonas foetus [Trichomonas foetus].

(25) TVMDL--The official laboratory for testing is the Texas A&M Veterinary Medical Diagnostic Laboratory.

(26) Virgin Bull--Sexually intact male registered breeding cattle which have not serviced a cow and which are not more than 18 months of age as determined by the eruption of the two permanent central incisors or birth date on breed registry papers certified by the breeder; or not more than 30 months of age and certified by both the breeder based on birth date and confirmed by his veterinarian that the bull facility is sufficient to prevent contact with female cattle. The virgin certification by the breeder is valid for 60 days, provided the bull is isolated from female cattle at all times, and may be transferred within that timeframe with an original signature of the consignor.

§38.2.General Requirements.

(a) Test Requirements. All Texas origin bulls sold, leased, gifted, exchanged or otherwise changing possession for breeding purposes in the State of Texas shall meet the following testing or certification requirements prior to sale or change of ownership in the state:

(1) Be certified as virgin, by the breeder or his representative, on and accompanied by a breeder's certificate of virgin status; or

(2) If from a herd of unknown status (a herd that has not had a whole herd test), be tested negative on three consecutive culture tests conducted not less than seven days apart or one PCR [RT-PCR] test conducted within 60 days of sale or movement, be held separate from all female cattle since the test sample was collected, and be accompanied by a Trichomoniasis test record showing the negative test results.

(b) Identification of Bulls. All bulls certified as virgin bulls shall be identified by an official identification device or method on the breeder's certification of virgin status. All bulls tested for Trichomoniasis shall be officially identified at the time the initial test sample is collected. That official identification shall be recorded on the test documents prior to submittal.

(c) Confirmatory Test. The owner of any bull which tests positive for Trichomoniasis may request in writing to the TAHC Region Director, within five days of the positive test, that the commission allow a confirmatory test be performed on the positive bull. The confirmatory test must be conducted within 30 days after the date of the original test. [If the confirmatory test is positive the bull will be classified as infected with Trichomoniasis. If the confirmatory test is negative the bull shall be retested in not less than seven days to determine its disease status. If the confirmatory test reveals that the bull is only infected with fecal trichomonads, the test may be considered negative.]

(1) If the confirmatory test is positive, the bull will be classified as infected with Trichomoniasis.

(2) If the confirmatory test is negative, the bull shall be retested in not less than seven days to determine its disease status.

(3) If the confirmatory test reveals that the bull is only infected with fecal trichomonads, the test may be considered negative.

(d) Untested Bulls. Bulls presented for sale without a breeder's certification of virgin status for registered breeding cattle or a Trichomoniasis test record showing negative test results may:

(1) Be sold for movement only directly to slaughter; or

(2) Be sold for movement to a [an] Trichomoniasis certified facility [approved feedlot ]and then moved to slaughter or transported back to a livestock market under permit, issued by commission personnel, to be sold in accordance with this chapter; or

(3) Be sold and moved under a Hold Order to such place as specified by the commission for testing to change status from a slaughter bull. Such bulls shall be officially individually identified with a permanent form of identification prior to movement, move to the designated location on a movement permit, and be held in isolation from female cattle at the designated location where the bull shall undergo three consecutive culture tests at least seven days apart or one PCR [RT- PCR] test. Testing shall be conducted within seven days of the purchase date. If the results of any test are positive, all bulls in the herd of origin of the positive bull shall be placed under hold order and tested as provided by subsection (e) of this section. The positive bull shall be classified as infected and be permitted for movement only directly to slaughter or to a livestock market for sale directly to slaughter; or

(4) Be sold and moved to another physical location under permit issued by commission personnel, and then to a livestock market or location to be resold within seven days from the date of issuance. The bull cannot be commingled with female cattle during the seven days.

(e) Herd of Origin or Unit Testing.

(1) All bulls that are part of a herd of origin from which a bull is sold in accordance with subsection (d)(3) of this section and is found to be infected with Trichomoniasis shall be placed under hold order and officially tested for Trichomoniasis.

(2) All bulls that are part of a unit of origin, as epidemiologically determined by the commission, from which a bull becomes separated and that bull is found to be positive for Trichomoniasis shall be placed under a hold order and officially tested for Trichomoniasis. All bulls that are part of the unit on which the separated positive bull was located, as epidemiologically determined by the commission, shall also be placed under hold order and officially tested for Trichomoniasis.

(3) Officially tested, as used in this subsection, requires at a minimum three official culture tests conducted not less than seven days apart, or one official PCR [RT-PCR] test. If the results of any test that are required by this subsection are positive, the herd shall be tested as provided by §38.3 of this chapter (relating to Infected Herds).

§38.3.Infected Herds.

(a) Bulls that have been determined to be infected by culture or by PCR [RT-PCR] test and/or by confirmatory PCR [RT-PCR] test shall be placed under hold order along with all other non-virgin bulls in the bull herd. Infected bulls must be isolated from all female cattle from the time of diagnosis until final disposition or as directed by the commission. Breeding bulls which test positive for Trichomoniasis [have been disclosed as reactors] may be retested provided: the owners, or their agents initiate a written request to the TAHC Region [Regional] Director where the bull is located within five business days of the positive test; that retests are conducted within 30 days after the date of the original test; test samples for retests are submitted to the TVMDL for testing; and the positive bull is held under quarantine along with all other exposed bulls on the premise. If they are retested, they must have two consecutive negative tests by PCR [RT-PCR] [to be released] within 30 days of the initial test to be released from hold order or quarantine.

(b) Positive bulls may be moved directly to slaughter or to a livestock market for sale directly to slaughter. In order to move, the bulls shall be individually identified by official identification device on a movement permit authorized by the commission from the ranch to the market and from the market to the slaughter facility, or from the ranch directly to the slaughter facility. Movement to slaughter shall occur within 30 days from disclosure of positive test results (or confirmatory test results) or as directed by the commission.

(c) All bulls that are part of a herd in which one or more bulls have been found to be infected shall be placed under hold order in isolation away from female cattle until they have undergone at least two additional culture tests with negative results (not less than a total of three negative culture tests or two negative PCR [RT-PCR] tests) within 60 days of the initial test unless handled in accordance with subsection (d) of this section. All bulls remaining in the herd from which an infected bull(s) has been identified must be tested two more times by culture or one more time by PCR [RT-PCR] test. Any bull positive on the second or third test shall be classified as positive. All bulls negative to all three culture tests or both PCR [RT-PCR] tests shall be classified as negative and could be released for breeding.

(d) Breeding bulls that are part of a quarantined herd or a herd that is under a hold order and tests negative to the first official Trichomoniasis test may be maintained with the herd if the owner or caretaker of the bulls develops a Trichomoniasis herd control plan with a certified veterinarian. The Trichomoniasis herd control plan shall require all breeding bulls to be tested annually with an official Trichomoniasis test and [aand] include other best management practices to control, eliminate and prevent the spread of Trichomoniasis. The Trichomoniasis herd control plan, unless otherwise approved or disapproved by the commission, expires three years from the date the plan is signed by the herd owner or caretaker and the authorized veterinarian. Breeding bulls that are part of a Trichomoniasis herd control plan that expires or that is disapproved must be tested for Trichomoniasis as required by subsection (c) of this section.

(e) All bulls that are part of a herd one year after the date the hold order or quarantine on the herd was released shall be officially tested for Trichomoniasis.

(f) [(e)] When Trichomoniasis is diagnosed in female cattle or fetal tissue, all breeding bulls associated with the herd will be restricted under a Hold Order for testing in accordance with this section.

(g) [(f)] If male or female cattle are found to be infected with Trichomoniasis, then bulls that are located or were located on property adjacent to the infected animal within 30 days from the date the infected animal was removed from such property shall be officially tested for Trichomoniasis. Such bulls shall be tested within a timeframe as determined by the commission. The commission shall provide written notification to the owner or caretaker of the bulls specifying the timeframe in which the bulls must be tested. The commission may waive this testing requirement if it is epidemiologically determined by the commission that testing is not required.

§38.4.Certified Veterinary Practitioners.

(a) Only certified veterinarians [certified through the Commission] may perform Trichomoniasis program procedures, including but not limited to, collection of samples for official tests for Trichomoniasis within the state of Texas, submission of samples to official laboratories, identification of tested bulls and virgin bulls, management of Trichomoniasis infected bull herds, movement of infected bulls, and reporting of test results. In order to collect and submit Trichomoniasis samples a veterinary practitioner shall be certified to perform Trichomoniasis program procedures. In order to be certified, a veterinarian shall also have a license [be licensed] to practice veterinary medicine in the state of Texas [and be], USDA-APHIS Category II accreditation [accredited through USDA], and TAHC authorized personnelstatus.

(b) All veterinarians desiring to perform Trichomoniasis program functions shall participate in a certification program on Trichomoniasis program requirements and procedures before performing any Trichomoniasis program functions, including but not limited to review of the disease, proper sample collection techniques, sample preservation and laboratory submission, identification of animals, management of infected herds and shipment of infected or exposed animals to slaughter. The official certification program shall be conducted by or under the auspices of the Commission. Certified veterinarians shall be recertified every five years.

(c) Certified veterinarians shall utilize approved procedures for collection of samples, identification of animals and submission of samples to laboratories.

(d)Certified veterinarians shall only utilize the official laboratories for culture of Trichomoniasis samples.

(e) Certified veterinarians shall submit all Trichomoniasis samples including all official identification on official Trichomoniasis test and report forms to the TVMDL in accordance with §38.6 of this chapter (relating to Official Trichomoniasis Tests).

§38.6.Official Trichomoniasis Tests.

Approved Tests. Approved tests for Trichomoniasis testing within the State of Texas shall include the culture or [Real Time] Polymerase Chain Reaction (PCR [RT-PCR]) testing of samples collected by certified veterinarians following approved collection, handling and shipping protocols, then tested in approved laboratories.

(1) Official Culture Tests. An official test is one in which the sample, collected in an InPouch, is received in the official laboratory, in good condition, within 48 hours of collection or is incubated in an InPouch by the collecting veterinarian for 48 hours after collection, and such sample is submitted to be tested according to the "Official Protocol for Culture of Trichomoniasis." Samples in transit for more than 48 hours will not be accepted for official culture testing. During transportation, the organisms should be protected from exposure to daylight and extremes of temperature, which should remain above 15 degrees Celsius (59 degrees Fahrenheit) and below 37 degrees Celsius (98.6 degrees Fahrenheit).

(2) Official Polymerase Chain Reaction (PCR) Tests. PCR [Polymerase Chain Reaction ]is accepted as an official test or an official confirmatory test when completed by a qualified laboratory, approved by the Executive Director, and meets the following requirements:

(A) A Trichomoniasis sample submitted in an InPouch must be received in the official laboratory, in good condition, within 48 hours of collection or incubated by the collecting veterinarian for 48 hours after collection and submitted to arrive at the laboratory within 96 hours of collection. Trichomoniasis samples pooled at the laboratory may qualify as official tests at a ratio of up to five individually collected samples pooled for one test. Veterinary practitioners may not submit pooled samples for an official test.

(B) A Trichomoniasis sample submitted in phosphate buffered saline (PBS) or sterile saline must be received in the official laboratory, in good condition, within 120 [96] hours of collection. Trichomoniasis samples pooled at the laboratory may qualify as official tests at a ratio of up to five individually collected samples pooled for one test. Veterinary practitioners may not submit pooled samples for an official test.

(3) Other Official Tests. Other tests for Trichomoniasis may be approved by the Commission, as official tests, after the tests have been proven effective by research, have been evaluated sufficiently to determine efficacy, and a protocol for use of the test has been established.

§38.8.Herd Certification Program--Breeding Bulls.

Enrollment Requirements. Herd owners who enroll in the Trichomoniasis Herd Certification Program shall sign a herd agreement with the commission and maintain the herd in accordance with the herd agreement and following conditions:

(1) All non-virgin breeding bulls shall be tested annually for Trichomonas foetus [T. foetus] for three consecutive years as required by the herd agreement.

(2) During the three year inception period, all non-virgin breeding bulls that are sold, leased, gifted, exchanged or otherwise change possession shall be tested for Trichomonas foetus [T. foetus] within 30 days prior to such change in possession. The test must be completed and test results known prior to the time a bull(s) is physically transferred to the receiving premises or herd.

(3) Negative Trichomonas foetus [T. foetus] bulls will be identified with official identification.

(4) All slaughter bulls removed from the herd must be tested for Trichomonas foetus [T. foetus]. The test may be performed at a slaughter facility if prior arrangement with a certified veterinarian and an appropriate agreement with the slaughter facility management is made.

(5) Bovine females added to a certified herd shall not originate from a known Trichomonas foetus [T. foetus] infected herd. Female herd additions must originate from a certified Trichomonas foetus [T. foetus] free herd or qualify in one of the following categories:

(A) calf at side and no exposure to other than known negative Trichomonas foetus [T. foetus] bulls;

(B) checked by an accredited veterinarian, at least 120 days pregnant and so recorded;

(C) virgin; or

(D) heifers exposed as virgins only to known negative Trichomonas foetus [T. foetus] infected bulls and not yet 120 days pregnant.

(6) Records must be maintained for all tests including all non-virgin bulls entering the herd and made available for inspection by a designated accredited veterinarian or state animal health official.

(7) All non-virgin bulls shall be tested for Trichomonas foetus [T. foetus] every two years after the initial three year inception period to maintain certification status.

(8) Herd premises must have perimeter fencing adequate to prevent ingress or egress of cattle.

(9) All bulls originating from a Trichomoniasis Certified Free Herd that is maintained in accordance with this section and the herd agreement are exempt from the testing requirement found in §38.2 of this chapter (relating to General Requirements).

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 23, 2022.

TRD-202203857

Mary Luedeker

General Counsel

Texas Animal Health Commission

Earliest possible date of adoption: November 6, 2022

For further information, please call: (512) 719-0718