PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 1. GENERAL PROCEDURES
SUBCHAPTER E. ADVISORY COMMITTEES
The Texas Department of Agriculture (Department) proposes new Texas Administrative Code, Title 4, Part 1, §1.221, regarding the Texas Food System Security and Resiliency Planning Council. The purposes of the Council are to provide guidance to the Department to fulfill its responsibilities under Texas Agriculture Code (Code), Chapter 23 and review the food system security plan developed under Code, Section 23.003.
Proposed §1.221 addresses the Texas Food System Security and Resiliency Planning Council and describes the Council's purposes, composition, and terms of office for members. In addition, it prescribes meeting requirements and procedures. The proposed rule also creates requirements for member conduct and training, addresses conflicts of interests, and provides for the duration of the Council.
LOCAL EMPLOYMENT IMPACT STATEMENT: The Department has determined that the proposed rule will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Texas Government Code, §2001.022.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Karen Reichek, Administrator for Trade and Business Development, has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of state or local governments.
PUBLIC BENEFITS AND PROBABLE ECONOMIC COST: Ms. Reichek has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be creation of a Council that will assist the Department in discharging its duties under Chapter 23 of the Texas Agriculture Code. Ms. Reichek has also determined that for each year of the first five-year period the proposed rule is in effect, there will be no cost to persons who are required to comply with the proposed rule.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule; therefore, preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002, is not required.
GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Texas Government Code, §2001.0221, the Department provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the Department has determined the following:
1. the proposed rule does not create or eliminate a government program;
2. implementation of the proposed rule does not require the creation or elimination of employee positions;
3. implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Department;
4. the proposed rule does not require an increase or decrease in fees paid to the Department;
5. the proposed rule does create a new regulation;
6. the proposed rule will not repeal an existing regulation;
7. the proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and
8. the proposed rule does not positively or adversely affect this state's economy.
Written comments on the proposed rule may be submitted to Karen Reichek, Administrator for Trade and Business Development, P.O. Box 12847, Austin, Texas 78711, or by email to Karen.Reichek@TexasAgriculture.gov. The deadline for comments is 30 days after publication in the Texas Register.
The new rule is proposed under Code, Section 23.006, which provides the Department shall adopt rules to administer Code, Chapter 23, including the Texas Food System Security and Resiliency Planning Council.
Texas Agriculture Code, Chapter 23 is affected by the proposed rule.
§1.221.Texas Food System Security and Resiliency Planning Council.
(a) Statutory authority. Texas Food System Security and Resiliency Planning Council (Council) is established pursuant to Texas Agriculture Code, §23.002.
(b) Definitions. In additional to the general definitions contained within Title 4, Part 1, Chapter 1, §1.1, the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) "Council" means the Texas food system security and resiliency planning council; and
(2) "Office" means the food and nutrition division or other division within the department responsible for food assistance programs, established pursuant to Texas Agriculture Code, §23.001(2).
(c) Purpose. The Council shall provide guidance to the Department in the administration of Texas Agriculture Code, Chapter 23 and the development of a state food system security plan.
(d) Composition. The Council is composed of members in accordance with Texas Agriculture Code, §23.002(a).
(e) A person appointed to the Council must have experience in an industry or economic sector involving food production or food sales or in a related industry or economic sector.
(f) Terms of Service for Council Membership.
(1) Each Council member serves at the pleasure of the appointing official.
(2) Any vacancy occurring on the Council shall be filled by the appropriate appointing official as soon as practicable.
(3) Appointments to the Council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(g) Presiding officers, including a chair and vice-chair, shall be designated in accordance with Texas Agriculture Code, Section 23.002.
(h) Meetings.
(1) Meetings shall be held at regular intervals, as directed by Texas Agriculture Code, Section 23.002
(2) A simple majority of the voting members of the Council shall constitute a quorum for the purpose of transacting business.
(3) The Council may only meet with a quorum present.
(i) Procedures.
(1) Any action taken by the Council must be approved by a majority vote of the members present once a quorum is established.
(2) Each voting member shall have one vote.
(3) The Council shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status.
(4) Minutes of each Council meeting shall be taken by department staff.
(j) Conduct By Members.
(1) Members of the Council shall not be entitled to compensation or reimbursement from the Department or the Council for expenses incurred in performing Council duties unless otherwise required under Texas Agriculture Code, Chapter 23.
(2) The Commissioner, the department, and the Council shall not be bound in any way by any statement or action on the part of any Council member except when a statement or action is specifically authorized by the Commissioner, department, or Council.
(3) The Council and its members may not participate in an official capacity in legislative activities in the name of the department or the Council except with approval of the department. Council members are not prohibited from representing themselves or other entities in the legislative process.
(4) A Council member should not accept or solicit any benefit that might reasonably tend to influence the member in the discharge of the member's duties.
(5) A Council member should not disclose confidential information acquired through his or her Council membership.
(6) A Council member should not knowingly solicit, accept, or agree to accept any benefit for having exercised the member's powers or duties in favor of another person.
(7) A Council member who has a personal or private interest in a matter pending before the Council shall publicly disclose the fact in a Council meeting and may not vote or otherwise participate in the matter. The phrase "personal or private interest" means the Council member has a direct pecuniary interest in the matter but does not include the Council member's engagement in a profession, trade, or occupation when the member's interest is the same as all others similarly engaged in the profession, trade, or occupation.
(8) A person may not serve as a member of Council if the person is required to register as a lobbyist under Chapter 305, Government Code because of the person's activities for compensation on a matter related to the Council.
(k) Council members must complete required Open Meetings Training in accordance with Texas Government Code, Chapter 551.
(l) Staff. Staff support for the Council shall be provided 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 August 21, 2023.
TRD-202303075
Susan Maldonado
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: October 1, 2023
For further information, please call: (512) 463-6591
CHAPTER 32. HEARING AND APPEAL PROCEDURES
The Texas Animal Health Commission (Commission) proposes amendments and additions to Title 4, Texas Administrative Code, Chapter 32 titled "Hearing and Appeal Procedures." Specifically, amendments are proposed to §32.1 Definitions, §32.2 Appeal of a Decision or Order by the Executive Director, §32.5 Decisions and Orders, and new additions are proposed for §32.3 Appeals of Other Orders and Decisions, and §32.4 Hearing Procedures. The proposed amendments are the result of rule review prescribed by §2001.039 Government Code. Notice of the Commission's intention to review this chapter was published in the May 12, 2023, issue of the Texas Register (48 TexReg 2511).
BACKGROUND AND PURPOSE
Chapter 32, concerning Hearing and Appeal Procedures, sets forth the process by which an individual may appeal an order or decision of the Commission. The Commission proposes amendments and new sections to this chapter to provide clearer guidance on the existing appeal process and to better align the appeal requirements with the statutory requirements set forth in the Texas Agriculture Code and the Administrative Procedure Act.
SECTION-BY-SECTION DISCUSSION
Section 32.1 defines terms used within the chapter. The proposed amendments add definitions for "Commissioner," "Contested case," and "Final order." The amendments clarify the definitions of "Executive director" and "Party," and replace "Hearing officer" with "Administrative Law Judge."
Section 32.2 outlines procedures for appeals of a monetary penalty for a violation. The proposed amendments clarify the process by which an individual may appeal an administrative penalty and clarify the steps the Commission must take if a notice of violation does not receive a timely response. The amendments bring the section requirements into alignment with the statutory requirements of the Texas Agriculture Code, §161.148.
Section 32.3 outlines procedures for appeals of other orders and decisions. The proposed new section clarifies the process by which an individual may appeal orders and decisions of the Commission that do not involve administrative penalties. The amendments direct readers to other locations within the rules that provide specific appeal provisions.
Section 32.4 specifies hearing procedures. The proposed new section provides guidance to parties and administrative law judges about how contested case hearings referred to the State Office of Administrative Hearings (SOAH) must be conducted. The amendments outline the procedures required by the Texas Agriculture Code, the Administrative Procedure Act, and the rules of SOAH.
Section 32.5 outlines procedures for the disposition of contested cases. The proposed amendments clarify already existing procedures following the conclusion of a contested case hearing. The amendments detail how the Commission must adopt final orders in a contested case, disposition of a case by default, and a party's opportunity to file a motion for rehearing upon the rendition of a final order.
SUMMARY OF COMMENTS RECEIVED DURING RULE REVIEW AND COMMISSION RESPONSE
During the 30-day comment period of the proposed rule review, the Commission received no comments.
FISCAL NOTE
Ms. Jeanine Coggeshall, General Counsel for the Texas Animal Health Commission, determined that for each year of the first five years that the rule is in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state or local governments. Commission employees will administer and enforce these rules as part of their current job duties and resources. Ms. Coggeshall also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed amendments.
PUBLIC BENEFIT NOTE
Ms. Coggeshall determined that for each year of the first five years the rule is in effect, the anticipated public benefits are to provide clarity and guidance on how an individual may appeal Commission orders and to better align the current rules with statutory requirements.
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. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a taking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The Commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission pursuant to Texas Government Code §2001.022.
REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES
The Commission 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.
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 amendments and new sections will not create or eliminate a government program;
2. Implementation of the proposed rules will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the amendments and new sections will result in no assumed change in future legislative appropriations;
4. The amendments and new sections will not affect fees paid to the Commission;
5. Although the amendments create new rule sections, the newly proposed sections merely clarify existing procedures;
6. The amendments and new sections expand existing rules for clarity and do not create any new or additional duties or rights but will not otherwise limit or repeal an existing regulation;
7. The amendments and new sections will not change the number of individuals subject to the rule; and
8. The amendments and new sections will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Ms. Coggeshall also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities pursuant to Texas Government Code, Chapter 2006. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
COSTS TO REGULATED PERSONS
The proposed amendments and new sections in Chapter 32 do not impose additional costs on regulated persons and are designed to provide clarity to already existing appeal procedures and to bring the rules into compliance with statutory requirements. The proposed rules do not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state.
PUBLIC COMMENT
Written comments regarding the proposed amendments and new sections 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 Proposed Rule-Chapter 32, Hearing and Appeal Procedures " in the subject line.
STATUTORY AUTHORITY
The amendments and newly proposed rules are authorized by Texas Government Code, §2001.004(1), which requires all administrative agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.
Pursuant to §161.038 of the Texas Agriculture Code, titled "Administrative Procedure Act Applicable," the Commission is subject to the administrative procedure law set forth in Chapter 2001 of the Texas Government Code.
Pursuant to §161.046 of the Texas Agriculture Code, titled "Rules," the Commission may adopt rules as necessary for the administration of enforcement of this chapter.
Pursuant to §161.148 of the Texas Agriculture Code, titled "Administrative Penalty," the Commission may impose an administrative penalty on a person who violates a statute, rule, or order of the Commission. Section 161.148 outlines the procedure for appeal from such notice of violation.
No other statutes, articles, or codes are affected by this proposal.
§32.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Act--The Administrative Procedure Act, Texas Government Code, Chapter 2001.
(2) Administrative Law Judge (ALJ)--A person designated by the State Office of Administrative Hearings (SOAH) to conduct proceedings pursuant to the Act.
(3) [(2)] Commission--The Texas
Animal Health Commission.
(4) Commissioner--A member of the commission appointed by the Governor.
[(4) Hearing officer--An administrative
law judge designated by the State Office of Administrative Hearings
to conduct proceedings pursuant to the Act.]
(5) Contested case--A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the commission pursuant to the Act after an opportunity for an adjudicative hearing.
(6) [(3)] Executive director--The Executive Director [chief executive officer] of the Texas Animal Health Commission [commission appointed by
the commissioners].
(7) Final order--The commission's final written disposition of a contested case, whether affirmative, negative, injunctive, or declaratory.
(8) [(5)] Party--A person or
agency named or admitted [by the executive director] as an
applicant, complainant, petitioner, intervenor, protestant, or respondent
in [a party to] a proceeding before the commission.
(9) [(6)] Person--An individual,
partnership, corporation, association, governmental subdivision, or
public or private organization of any character.
§32.2.Appeal of a Monetary Penalty
for a Violation[Decision or Order by the Executive Director].
(a) Purpose. The purpose of this section is to provide a process by which an individual may appeal a notice of violation that includes an assessment of a monetary penalty for violation of law, rule of the commission, or order of the commission. This section does not apply to other orders or decisions issued by the commission or by the executive director. Nor does this section create a right to a contested case hearing not already conferred by statute.
(b) A person receiving written notice from
the commission of a monetary penalty for a violation may appeal by
requesting a contested case hearing no later than 20 days from receipt
of the notice. The request must comply with the following requirements: [of an order by the executive director has 15 days from receipt of
the notice to file notice of appeal. The notice of appeal must be
in writing and filed with the executive director at the commission's
office in Austin. The notice must specifically state the issues for
consideration on appeal. The administrative hearing on the specific
issues appealed will be held in Austin, pursuant to provisions of
the Act, this Chapter, and the rules of the State Office of Administrative
Hearings (Title 1, Texas Administrative Code, Chapters 155-157).]
(1) be in writing;
(2) state whether the request challenges the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; and
(3) be submitted to the executive director at the commission's office in Austin at the address provided in the notice of violation.
(c) If a timely request is made, the commission shall determine if a contested hearing is authorized under the relevant statutory provisions and rules. If so, the commission shall refer the matter to SOAH for a hearing.
(d) The commission's complaint shall serve as the list of issues that must be addressed. Only those issues referred by the commission may be considered in the hearing. After the conclusion of a contested case hearing, the ALJ shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for decision about the occurrence of the violation and the amount of the proposed penalty in accordance with §2001.062 of the Texas Government Code and SOAH rules.
(e) If a person receiving written notice of violation from the commission fails to timely respond to the notice, the commission shall refer the matter to SOAH for a hearing. The commission's complaint shall serve as the list of issues that must be addressed. Only those issues referred by the commission may be considered in the hearing. After the conclusion of a contested case hearing, the ALJ shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for decision about the occurrence of the violation and the amount of the proposed penalty in accordance with §2001.062 of the Texas Government Code and SOAH rules.
§32.3.Appeal of Other Orders and Decisions.
(a) For appeals of orders and decisions of the executive director concerning brucellosis see §35.2(l) and §35.2(p) of this title (relating to General Requirements).
(b) For appeals of orders and decisions of the executive director concerning CWD Herd Certification Program see §40.3(h) of this title (relating to CWD Herd Certification Program).
(c) For appeals of orders and decisions of the executive director concerning fever ticks see §41.8(3) and §41.11 of this title (Protest of designation of area or premise).
(d) For appeals of orders and decisions of the executive director concerning tuberculosis see §43.2(k) of this title (relating to General Requirements).
(e) For appeals of orders and decisions of the executive director concerning authorized personnel see §47.7 of this title (relating to Procedure for Suspension or Revocation).
(f) For appeals of orders and decisions of the executive director concerning piroplasmosis see §49.6(g) of this title (relating to Piroplasmosis: Area or County Test).
(g) For appeals of executive declarations of high risk disease movement restriction zones see §59.11(g) of this title (relating to Executive Declaration of a High Risk Disease Movement Restriction Zone).
(h) For appeals of all other orders and decisions of the executive director not enumerated above, the following procedure applies:
(1) A person receiving a written order or decision from the commission or executive director must file a notice of appeal no later than 15 days from receipt of the decision. The notice of appeal must be filed in writing with the executive director at the commission's office in Austin. The notice of appeal must attach copy of the order or decision being appealed and specifically state the issues for consideration on appeal.
(2) If a timely request is made, the commission shall determine if a contested hearing is authorized under the relevant statutory provisions and rules. If so, the commission shall refer the matter to SOAH for a hearing.
(3) After the conclusion of the hearing, the ALJ shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for a decision about the issues appealed in accordance with §2001.062 of Texas Government Code and SOAH rules.
§32.4.Hearing Procedures.
(a) Hearings of contested cases referred to SOAH shall be conducted by an administrative law judge assigned by SOAH and in accordance with the Act, the rules of SOAH, and this chapter. SOAH shall acquire jurisdiction over a case when the commission completes and files a Request to Docket Case form, together with other pertinent documents giving rise to the contested case.
(b) Discovery. The scope and form of discovery in a contested case shall be the same as provided by the Texas Rules of Civil Procedure and shall be subject to the constraints provided therein for privileges, objections, protective orders, and duty to supplement as well as the constraints provided in the Act and rules of SOAH.
(c) Evidence. The Texas Rules of Evidence as applied in a nonjury civil case in district court shall govern contested case hearings. The admissibility of evidence in a contested case shall be governed by the Act and by the rules of SOAH.
(d) Burden of proof. A party seeking monetary damages or penalties shall bear the burden of proof. In all other instances, the party challenging a commission decision or action shall bear the burden of proof.
(e) Transcript. Proceedings shall be recorded when requested by the ALJ, the commission, or by any party. The cost of preparing the transcript shall be assessed against and is to be paid by the party or parties requesting the transcription.
§32.5.Disposition of Contested Cases [Decisions and Orders].
(a) In all cases referred to SOAH, the commission retains the right to make the final decision in a contested case. After the conclusion of a contested case hearing, the ALJ shall prepare and serve on the parties a proposal for decision that includes findings of fact and conclusions of law, modified as necessary by the ALJ to address any exceptions and replies timely filed in accordance with §2001.062 of the Texas Government Code and SOAH rules.
(b) The executive director shall place the proposal for decision and a proposed final order on the commission's agenda for discussion and possible action at a subsequent meeting of the commission.
(c) [(a) ] At a meeting
of the commission where the proposed final order is set for discussion
and possible action, public testimony is allowed. However, [After
the completion of the hearing,] no further evidence shall be
received or considered. The commission may, in its discretion, allow
oral arguments.
(d) [(b) ] The commission
may, on its own motion, remand to SOAH for any additional fact finding
it determines is necessary, or the commission may change a finding
of fact or conclusion of law made by the ALJ for any reason enumerated
in §2001.058(e) of the Texas Government Code. If the commission
determines that the findings of fact and conclusions of law are supported
by the evidence, the commission shall issue a final order by [Seven commission members shall constitute a quorum. By] a majority
of those present or by a majority of the quorum, whichever is greater. The[, the] commission shall [will]
adopt findings of fact and conclusions of law which shall be part
of the commission's final [decision or] order. Findings
of fact shall be based exclusively on the evidence or on matters officially noticed.
(e) Disposition by Default.
(1) In contested cases where the party not bearing the burden of proof at the hearing fails to appear, the ALJ may issue an order finding that adequate notice has been given, deeming factual allegations in the notice of hearing admitted, conditionally dismissing the case from the SOAH docket, and conditionally remanding the case to the commission for disposition by default as permitted by Texas Government Code, §2001.056 and §2001.058(d-1).
(2) Pursuant to 1 TAC §155.501(e), the defaulting party shall be provided with adequate notice of the conditional order and an opportunity to set aside the default. If no motion to set aside is granted, the conditional order of dismissal and remand becomes final.
(3) When the order of dismissal and remand is final, the executive director shall prepare a proposed order for the commission's action containing findings of fact as set forth in the notice of hearing, conclusions of law, and granting the relief requested. The matter shall be placed on the commission's agenda for discussion and possible action at a subsequent meeting. Although public testimony is allowed, no further evidence shall be received or considered. The commission may, in its discretion, allow oral arguments.
(f) [(c)] Upon rendition of the
commission's final order [decision], parties
adversely affected may file a motion for rehearing in accordance with
the Act and the rules of SOAH. Judicial review will be
by district court in Travis County, in accordance with the Act.
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 August 16, 2023.
TRD-202302986
Jeanine Coggeshall
General Counsel
Texas Animal Health Commission
Earliest possible date of adoption: October 1, 2023
For further information, please call: (512) 719-0718
The Texas Animal Health Commission (Commission) proposes the repeal of existing §32.6, concerning Transcript of the Hearing in the Texas Administrative Code, Title 4, Part 2, Chapter 32. Notice of the Commission's intention to review this chapter was published in the May 12, 2023, issue of the Texas Register (48 TexReg 2511).
BACKGROUND AND PURPOSE
Chapter 32, concerning Hearing and Appeal Procedures, sets forth the process by which an individual may appeal an order or decision of the Commission. The Commission proposes the repeal of §32.6, concerning Transcript of the Hearing, because the contents of the rule have been moved to §32.4, Hearing Procedures. This change is proposed to provide clearer guidance on the existing appeal process and to better align the appeal requirements with the statutory requirements set forth in the Texas Agriculture Code and the Administrative Procedure Act.
SECTION-BY-SECTION DISCUSSION
The proposed repeal will repeal the existing §32.6, the contents of which have been moved to §32.4, Hearing Procedures, in a concurrent submission.
SUMMARY OF COMMENTS RECEIVED DURING RULE REVIEW AND COMMISSION RESPONSE
During the 30-day comment period of the proposed rule review, the Commission received no comments.
FISCAL NOTE
Ms. Jeanine Coggeshall, General Counsel for the Texas Animal Health Commission, determined that for each year of the first five years that the rule is in effect, enforcing or administering the proposed repeal does not have foreseeable implications relating to costs or revenues of state or local governments. Commission employees will administer and enforce the repeal as part of their current job duties and resources. Ms. Coggeshall also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed repeal.
PUBLIC BENEFIT NOTE
Ms. Coggeshall determined that for each year of the first five years the repeal is in effect, the anticipated public benefits are to provide clarity and guidance on how an individual may appeal Commission orders and to better align the current rules with statutory requirements.
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. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a taking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The Commission determined that the proposed repeal would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission pursuant to Texas Government Code §2001.022.
REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES
The Commission 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.
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 repeal would be in effect, the Commission determined the following:
1. The repeal will not create or eliminate a government program;
2. Implementation of the proposed repeal will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the repeal will result in no assumed change in future legislative appropriations;
4. The repeal will not affect fees paid to the Commission;
5. The repeal will not create new regulation;
6. The repeal will repeal an existing regulation, but the repealed regulation has been moved to another rule section for readability;
7. The repeal will not change the number of individuals subject to the rule; and
8. The repeal will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Ms. Coggeshall also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities pursuant to Texas Government Code, Chapter 2006. The repeal does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
COSTS TO REGULATED PERSONS
The proposed repeal to Chapter 32 does not impose additional costs on regulated persons and are designed to provide clarity to already existing appeal procedures and to bring the rules into compliance with statutory requirements. The proposed repeal does not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state.
PUBLIC COMMENT
Written comments regarding the proposed repeal 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 Proposed Rule-Chapter 32, Hearing and Appeal Procedures " in the subject line.
STATUTORY AUTHORITY
The proposed repeal is authorized by Texas Government Code, §2001.004(1), which requires all administrative agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.
Pursuant to §161.038 of the Texas Agriculture Code, titled "Administrative Procedure Act Applicable," the Commission is subject to the administrative procedure law set forth in Chapter 2001 of the Texas Government Code.
Pursuant to §161.046 of the Texas Agriculture Code, titled "Rules," the Commission may adopt rules as necessary for the administration of enforcement of this chapter.
Pursuant to §161.148 of the Texas Agriculture Code, titled "Administrative Penalty," the Commission may impose an administrative penalty on a person who violates a statute, rule, or order of the Commission. Section 161.148 outlines the procedure for appeal from such notice of violation.
No other statutes, articles, or codes are affected by this proposal.
§32.6.Transcript of the Hearing.
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 August 16, 2023.
TRD-202302985
Jeanine Coggeshall
General Counsel
Texas Animal Health Commission
Earliest possible date of adoption: October 1, 2023
For further information, please call: (512) 719-0718
The Texas Animal Health Commission (Commission) proposes amendments to Title 4, Texas Administrative Code, Chapter 56 titled "Grants, Gifts and Donations." Specifically, amendments are proposed to §56.1 Purpose, §56.2 Definitions, §56.3 Acceptance of Grants, Gifts and Donations, §56.4 Solicitation, §56.5 Restricted/Unrestricted, §56.6 Standards of Conduct between Employees and Officers and Private Donors, and §56.7 Acceptance of Gift From Party to Contested Case Prohibited. The proposed amendments are the result of rule review prescribed by §2001.039 Government Code. Notice of the Commission's intention to review this chapter was published in the May 12, 2023, issue of the Texas Register (48 TexReg 2512).
BACKGROUND AND PURPOSE
Chapter 56 sets forth rules and guidelines by which the Commission may accept and solicit gifts. The chapter also includes standards of conduct on how commissioners and employees must conduct themselves when dealing with private donors. The Commission proposes amendments to this chapter to update the rule language to reflect the current preferred terminology, for ease of use and readability, and to bring the requirements of gift acceptance in better alignment with statutory requirements.
SECTION-BY-SECTION DISCUSSION
Section 56.1 states the purpose of Chapter 56 is to establish rules for accepting gifts and for governing conduct between private donors and the Commission. The proposed amendments update rule language to reflect current preferred Commission terminology.
Section 56.2 defines terms used within the chapter. The proposed amendments add definitions for "Commissioner" and "Executive director." The amendments clarify the definition of "Private donor" and remove the definition of "Officer."
Section 56.3 outlines rules for accepting donations. The proposed amendments clarify the responsibilities of the executive director and when donations must be acknowledged by a majority of the commissioners in an open meeting. The proposed amendments are designed to bring this section into better alignment with Chapter 575 of the Texas Government Code.
Section 56.4 specifies when the Commission may solicit gifts. The proposed amendments move the reporting requirement to Section 56.3 to clarify that the requirement applies to all accepted grants, gifts, or donations.
Section 56.5 details what type of donations may be made to the Commission. The proposed amendments update rule language for readability and clarifies that donations may be for any amount and with or without restrictions.
Section 56.6 outlines standards of conduct between commissioners, employees, and private donors. The proposed amendments update rule language to reflect current preferred Commission terminology.
Finally, Section 56.7 prohibits acceptance of gifts from a party in a contested case. The proposed amendments update rule language for readability.
SUMMARY OF COMMENTS RECEIVED AND COMMISSION RESPONSE
During the 30-day comment period of the proposed rule review, the Commission received one comment from an individual.
The commenter explained that funding is available through USDA APHIS Veterinary Services Strategy & Policy for state entities to collaborate with private entities for programs related to the control or prevention of chronic wasting disease. The commenter offered the commenter's expertise to assist with collaborations on chronic wasting disease.
Response: The Commission thanks the commenter for information provided. No changes to Chapter 56 were made as a result of this comment.
FISCAL NOTE
Ms. Jeanine Coggeshall, General Counsel for the Texas Animal Health Commission, determined that for each year of the first five years that the rule is in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state or local governments. Commission employees will administer and enforce these rules as part of their current job duties and resources. Ms. Coggeshall also determined for the same period that there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed amendments.
PUBLIC BENEFIT NOTE
Ms. Coggeshall determined that for each year of the first five years the rule is in effect, the anticipated public benefits are improved readability from updates to terminology and style, and better alignment of the rules governing gift acceptance with Chapter 575 of the Texas Government Code.
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. Therefore, the proposed rules are compliant with the Private Real Property Preservation Act in Texas Government Code §2007.043 and do not constitute a taking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The Commission determined that the proposed rules would not impact local economies and, therefore, did not file a request for a local employment impact statement with the Texas Workforce Commission pursuant to Texas Government Code §2001.022.
REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES
The Commission 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.
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 amendment will not create or eliminate a government program;
2. Implementation of the proposed rules will not require the creation of new employee positions or the elimination of existing employee positions;
3. Implementation of the amendment will result in no assumed change in future legislative appropriations;
4. The amendment will not affect fees paid to the Commission;
5. The amendment does not create new regulation;
6. The amendment does not expand, limit, or repeal existing regulations;
7. The amendment will not change the number of individuals subject to the rule; and
8. The amendment will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Ms. Coggeshall also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities pursuant to Texas Government Code, Chapter 2006. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
COSTS TO REGULATED PERSONS
The proposed amendments to Chapter 56 do not impose additional costs on regulated persons and are designed to update terminology and style, and better align the rules governing gift acceptance with Chapter 575 of the Texas Government Code. The proposed rules do not otherwise impose a direct cost on a regulated person, state agency, a special district, or a local government within the state.
PUBLIC 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 Proposed Rule-Chapter 56, Grants, Gifts, and Donations " in the subject line.
STATUTORY AUTHORITY
The amendments are proposed under §161.0311 of the Texas Agriculture Code which provides that the Commission may solicit and accept gifts, grants, and donations for purposes consistent with Chapter 161.
The amendments are proposed under the Texas Agriculture Code, Chapter 161, §161.046 which authorizes the Commission to promulgate rules in accordance with the Texas Agriculture Code.
The amendments conform to the requirements contained in Chapter 575 of the Texas Government Code, relating to Acceptance of Gift by State Agency. The amendments conform to the requirements contained in §2204.002 of the Texas Government Code, relating to restrictions on real property gifts.
No other statutes, articles, or codes are affected by this proposal.
§56.1.Purpose.
The purpose of this chapter [these sections]
is to establish rules for acceptance of private donations and to establish
standards of conduct to govern the relationships between commissioners
[officers] and employees of the Texas Animal Health
Commission and private donors.
§56.2.Definitions.
The following words and terms, when used in this chapter [section], shall have the following meanings, unless the context
clearly indicates otherwise.
(1) Commission--The [the] Texas
Animal Health Commission.
(2) Commissioner--A member of the commission appointed by the Governor.
(3) [(2)] Employee--A regular,
acting, or exempt, full- or part-time employee of the commission
[Commission].
(4) Executive director--The Executive Director of the Texas Animal Health Commission.
[(3) Officer--A member of the Commission's
governing board.]
(5) [(4)] Private donor--One
or more individuals or organizations that offer and/or [to
] give gifts or donations, in whatever form, [nonpublic
financial assistance] to the commission [Commission].
§56.3.Acceptance of Grants, Gifts, and Donations.
(a) The executive director, on behalf of the commission,
may accept gifts, grants, and donations upon a determination [Donations in the amount of less than five hundred dollars may be accepted
upon determination of the Commission's executive director] that
the donation is for purposes consistent with Texas Agriculture Code,
Chapter 161.
(1) The executive director shall report all accepted gifts and donations to the commissioners.
(2) If the value of the donation is $500 or more, the commissioners must, by a majority vote during an open meeting, acknowledge the donation, no later than the 90th day after the date it is accepted. The minutes of the open meeting will reflect the acknowledgement by recording the name of the donor, a description of the gift, and a general statement of the purpose for which the gift will be used.
[(b) Gifts, grants and donations valued
at five hundred dollars ($500.00) or more must be accepted by a majority
of the board, in an open meeting not later than the 90th day after
the date the gift is received by the Commission. The Commission, when
it accepts the gifts in open meeting, will record the name of the
donor, a description of the gift, and a statement of the purpose of
the gift in the minutes of the Commission's meeting.]
(b) [(c)] Donations of real property
(real estate) shall be accepted by the commission [Commission
] only upon authorization of the legislature.
[(d) Donations to the Commission may
be for any amount and for specified or unspecified purposes.]
(c) The commission shall report to the legislature by December 31 of each year the source and amount of each grant, gift, and donation received under this section.
§56.4.Solicitation.
[(a)] The commission may solicit [The solicitation of] grants, gifts, and donations
[by the Commission shall be] limited to purposes consistent
with Chapter 161 of the Texas Agriculture Code and in accordance with §56.6
of this chapter.
[(b) The Commission shall report to
the legislature by December 31 of each year the source and amount
of each grant, gift, and donation received under this section.]
§56.5.Restricted/Unrestricted Donations.
(a) Donations to the commission may be for any amount and for specified or unspecified purposes.
(b) [(a)] Conditional or restricted
[restrictive] donations for purposes specified by
the donor may be accepted only if the specified purpose
is [conditions are] consistent with the mission,
purpose, legal authority, and goals [approved purposes]
of the commission [Commission and consistent with
state laws and these rules]. Upon acceptance, restricted [restrictive] donations shall be used only for purposes specified
by the donor.
(c) [(b)] Unconditional donations
shall be used to carry out the approved purposes of the commission [Commission], consistent with state laws and these rules.
§56.6.Standards of Conduct Between [between] Commissioners and Employees [and Officers]
and Private Donors.
(a) A commissioner [An officer]
or employee shall not accept or solicit any gift, favor, or service
from a private donor that might reasonably tend to influence the
commissioner's or employee's [his/her] official conduct.
(b) A commissioner [An officer]
or employee shall not accept employment or engage in any business
or professional activity with a private donor that [which
] the commissioner [officer] or employee
might reasonably expect would require or induce the commissioner
or employee [him/her] to disclose confidential information
acquired by reason of the commissioner's or employee's [his/her
] official position.
(c) A commissioner [An officer]
or employee shall not accept other employment or compensation from
a private donor that [which] could reasonably
be expected to impair the commissioner's [officer's]
or employee's independence of judgment in the performance of the
commissioner's or employee's [his/her] official duties.
(d) A commissioner [An officer]
or employee shall not make personal investments in association with
a private donor that [which] could reasonably
be expected to create a substantial conflict between the commissioner's
[officer's] or employee's private interest and the
interest of the commission [Commission].
(e) A commissioner [An officer]
or employee shall not solicit, accept, or agree to accept any benefit
for having exercised the commissioner's or employee's [his/her
] official powers on behalf of a private donor or performed
[his] official duties in favor of a private donor.
(f) A commissioner [An officer]
or employee who has policy direction over the commission [Commission] and who serves as an officer or director of a private
donor shall not vote on or otherwise participate in any measure, proposal,
or decision pending before the private donor if the commission [Commission] might reasonably be expected to have an interest
in such measure, proposal, or decision.
(g) A commissioner [An officer]
or employee shall not authorize a private donor to use property of
the commission [Commission] unless the property
is used in accordance with a contract between the commission [Commission] and the private donor, or the commission [Commission] is otherwise compensated for the use of the property.
§56.7.Acceptance of Gift From Party to Contested Case Prohibited.
The commission may [Commission will]
not accept a gift from a person who is a party to a contested case pending
before the commission [agency] from
the inception of the case until the 30th day after the date
the decision in the case becomes final under §2001.144 of the
Texas Government Code. In this section, "contested case" has the meaning
assigned by Texas Government Code, §2001.003.
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 August 16, 2023.
TRD-202302987
Jeanine Coggeshall
General Counsel
Texas Animal Health Commission
Earliest possible date of adoption: October 1, 2023
For further information, please call: (512) 719-0718
CHAPTER 71. BEES
The Texas Apiary Inspection Service (TAIS) proposes amendments to 4 TAC §71.1 and §71.9, the repeal of 4 TAC §71.23, and new 4 TAC §71.24. TAIS proposes the repeal of 4 TAC §71.23 due to the intrastate permit requirement being repealed by Chapter 131 updates. TAIS proposes new 4 TAC §71.24 in order to add the new requirements for beekeeper registration, and proposes amending 4 TAC §71.9 as a new interstate permit will replace exportation and intrastate permits. The intrastate permit will be repealed by Chapter 131 updates. These changes are necessary to meet changes in Chapter 131 "The Bee Laws".
Comments on the proposal may be submitted in writing to Angela Thomas, Chief Apiary Inspector, 2475 TAMU, College Station, Texas 77843-2475. Comments may also be submitted electronically to angela.thomas@ag.tamu.edu or faxed to (979) 845-0983. The deadline for comments is September 30, 2023.
SUBCHAPTER A. GENERAL PROVISIONS
The amendments are proposed under the Texas Agriculture Code Chapter 131.021, which authorizes the Chief Apiary Inspector to adopt rules with the goal of treating, eradicating and suppressing infectious diseases of honey bees.
Texas Agriculture Code, Chapter 71, Subchapter A and C, are affected by the proposal.
§71.1.Definitions.
The following words and terms, when used in this title shall have the following meanings, unless the context clearly indicates otherwise:
(1) (No change.)
(2) Apiary--A place where [six or more]
colonies of bees or nuclei of bees are kept.
(3) - (4) (No change.)
(5) Colony--means a distinguishable localized
population of bees in which one or more life stages may be present [The hive and it's equipment and appurtenances, including bees, comb,
honey, pollen and brood].
(6) - (15) (No change.)
(16) Beekeeper--a person who owns, leases, possesses, controls, or manages one or more colonies of bees for any personal or commercial purpose.
(17) "Package Bees" means live bees in cages without comb.
(18) "Hive" means a box or other shelter containing a colony of bees.
§71.9.Permits for Shipment.
[(a)] Permits authorizing a shipment
or shipments [exportation] of bees or equipment into
or out of [from] Texas [to another state]
may be issued as provided in §131.041 [§131.042
] of the Act. An affidavit provided under subsection (e)(1) [ (b)(2)] of that section shall be filed with the office of the
Chief Apiary Inspector and shall be valid only for a period of one
year from the date of filing.
[(b) Permits authorizing intrastate
shipments of bees or equipment may be issued as provided in §131.043
of the Act.]
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 August 16, 2023.
TRD-202302989
Angela Thomas
Chief Apiary Inspector
Office of the Chief Apiary Inspector
Earliest possible date of adoption: October 1, 2023
For further information, please call: (979) 845-9714
The repeal of §71.23 is proposed to reflect changes in Chapter 131.01-131.122. The repeal is proposed under the Texas Agriculture Code Chapter 131.021, which authorizes the Chief Apiary Inspector to adopt rules with the goal of treating, eradicating and suppressing infectious diseases of honey bees.
Texas Agriculture Code, Chapter 71, Subchapter A and C, are affected by the proposal.
§71.23.Exemption from Fees.
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 August 16, 2023.
TRD-202303082
Angela Thomas
Chief Apiary Inspector
Office of the Chief Apiary Inspector
Earliest possible date of adoption: October 1, 2023
For further information, please call: (979) 845-9714
New §71.24 is proposed to reflect changes in Chapter 131.01-131.122. The new rule is proposed under the Texas Agriculture Code Chapter 131.021, which authorizes the Chief Apiary Inspector to adopt rules with the goal of treating, eradicating and suppressing infectious diseases of honey bees.
Texas Agriculture Code, Chapter 71, Subchapter A and C, are affected by the proposal.
§71.24.Beekeeper Registration.
(a) Each beekeeper in this state may register on an annual basis with the chief apiary inspector. Registration under this section expires August 31 following the date the registration is issued.
(b) A registration must include:
(1) information required by the chief apiary inspector; and
(2) the county or counties in which the beekeeper operates.
(c) The inspector may require a beekeeper to submit a map showing the exact location of each of the beekeeper's apiaries. A map submitted under this section is a trade secret under Ch. 552, Government Code, and may not be disclosed.
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 August 16, 2023.
TRD-202303083
Angela Thomas
Chief Apiary Inspector
Office of the Chief Apiary Inspector
Earliest possible date of adoption: October 1, 2023
For further information, please call: (979) 845-9714