PART 1. TEXAS DEPARTMENT OF AGRICULTURE

Transcription

1 TITLE 4. AGRICULTURE PART 1. TEXAS DEPARTMENT OF AGRICULTURE CHAPTER 21. CITRUS The Texas Department of Agriculture (the Department) adopts the repeal of Title 4, Part 1, Subchapter A, Citrus Quarantines, 21.1, ; the repeal of Subchapter C, Foundation Block, Increase Block, and Production of Certified Budwood, and 21.39; the repeal of Subchapter D, Citrus Nursery Stock Certification Program, and 21.63; and the repeal of Subchapter E, Citrus Nursery Stock Propagation in Areas of Texas Outside the Citrus Zone, The Department adopts amendments to 21.5 of Subchapter A, and new 21.1, and new ; the amendment of the title of Subchapter C to "Foundation Block, Scion Block, Increase Block, and Production of Certified Budwood," and amendments to 21.31, 21.35, 21.36, and 21.41, and new and 21.44; amendments to Subchapter D, 21.60, 21.62, 21.67, and new and 21.63; amendments to Subchapter E, and 21.84, and new 21.80; and amendment of the title of Subchapter F to "State Certified Clean Citrus Stock Program," and the amendment of All of the rules are adopted without changes to the proposal published in the November 24, 2017, issue of the Texas Register (42 TexReg 6569), with the exception of new 21.6, 21.9 and in Subchapter A, and new and 21.63, and amended in Subchapter D, which are adopted with changes. The adopted rules are necessary to protect the state's vital citrus fruit and nursery production areas by combatting the spread of citrus greening, citrus canker and other dangerous citrus pests and diseases. The Department has determined that the citrus and nursery industries are in peril because of the spread of citrus greening disease and citrus canker disease. The rules are proposed to reduce the threat of irreparable and widespread damage to commercial citrus groves, citrus plant production nurseries, and ornamental citrus in non-infected areas caused by citrus greening and citrus canker. The proposed rules consolidate and clarify definitions, amend requirements and restrictions for citrus and revise the regulatory framework for the growing of citrus nursery stock for commercial or noncommercial use. The Department received comments from Mr. Richard Young, COO of Greenleaf Nursery Co., and Mr. Paul Heller, on behalf of Wonderful Citrus, in general support of the Department s proposal and efforts to mitigate citrus pests and disease in Texas. Comments submitted by Mr. Heller which were unrelated to the proposed rules as published will not be addressed at this time. The Department also received comments from Mr. Ricky Becnel, on behalf of Saxon Becnel & Sons Citrus Nursery, and Mr. Jeff Stokes on behalf of the Texas Nursery Landscape Association. Mr. Heller submitted a comment regarding that a requirement for a 5-foot buffer when using a single-wall approved screening for facility structures is overly burdensome. Under current USDA and TDA requirements, double-layer screening is required. The proposed buffer, only when using a single-layer interior screen, is an option for facilities, not a new restriction or requirement. As a matter of clarification, TDA has removed the reference to the 5-foot buffer. Mr. Becnel requested clarification regarding the square footage fees related to insect exclusionary structures in The Department has responded by clarifying the fee structures in to state that the total structure shall be up to 25,000 square feet, and additional fees will be for square footage that exceeds that total amount. Mr. Stokes commented regarding 21.63(a)(3) the requirement which precludes nursery employees from returning to a certified citrus nursery structure in the same day after working in a noncertified structure. Both Mr. Becnel and Mr. Stokes submitted comments regarding 21.63(a)(4) which requires that certified citrus nursery structure employees wear mandated garments. After review, the Department has stricken 21.63(a)(3) - (4) after determining that these sections do not significantly improve risk management or mitigation of citrus pests and diseases. Mr. Heller commented that 21.63(a)(6), regarding restrictions on "growing media storage area" should be removed due to the variables and management at each nursery. The Department has reviewed this recommendation and removed this referenced from 21.63(a)(6). Mr. Becnel has commented in general support of 21.63(a)(7) - (9), however, due to the differing business practices of each grower, seeks a more broad requirement which defers to the grower. Mr. Heller and Mr. Stokes commented in favor of striking 21.63(a)(7), and 21.63(a)(9). The Department has eliminated 21.63(a)(7) - (9) and replaced them with new 21.63(a)(5). SUBCHAPTER A. CITRUS QUARANTINES 4 TAC 21.1, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. ADOPTED RULES March 16, TexReg 1629

2 TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER C. FOUNDATION BLOCK, INCREASE BLOCK, AND PRODUCTION OF CERTIFIED BUDWOOD 4 TAC 21.38, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER D. CITRUS NURSERY STOCK CERTIFICATION PROGRAM 4 TAC 21.61, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER E. CITRUS NURSERY STOCK PROPAGATION IN AREAS OF TEXAS OUTSIDE THE CITRUS ZONE 4 TAC The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER A. CITRUS QUARANTINES 4 TAC 21.1, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption Restrictions. (a) General. 43 TexReg 1630 March 16, 2018 Texas Register

3 (1) In addition to any other applicable restrictions imposed by regulations adopted under Chapter 71 of the Code, quarantined articles may not be transported into Texas except as outlined in subsections (b) and (c) of this section. Legible and complete records sufficient to document compliance with all requirements in this section shall be kept, maintained, accessible, and made available for inspection during normal business hours for a time period no less than four years. (2) Quarantined articles from areas of Texas outside of the citrus zone may not be transported into the citrus zone except: (A) if approved by the Department under the conditions of a compliance agreement or a special permit issued by the Department for research, for testing of official regulatory samples, or for use in the production of parasites, predators or pathogens of a quarantined pest or other purpose deemed necessary by the department; or (B) if the citrus nursery tree is propagated, treated and transported in accordance with of this chapter (relating to Movement of Citrus Plants into the citrus zone or Out of an Area Quarantined for Citrus Greening). (b) Required Labeling. (1) In addition to the requirements in this Subchapter A, any citrus nursery stock sold, moved or distributed into or within an area quarantined for citrus greening must have attached to the article or to the container of the article, a permanent and weatherproof tag or label in a clear and legible format no less than 14-point font bearing the exact words: (A) "PROHIBITED FOR MOVEMENT OUTSIDE OF QUARANTINED AREA Penalty for Violation, Texas Department of Agriculture: TexasAgriculture.gov;" and (B) "TREATMENT DATE: MM/DD/YYYY." The date format may be provided in another format such as 01AUG2015 or AUG that identifies the date of the required pre-shipment soil drench or soil incorporated treatment. (2) Citrus nursery stock that is not in or intended for movement into a citrus greening quarantined area shall not be labeled as described in paragraph (1)(A) of this subsection. (3) Citrus nursery stock labeled or tagged according to paragraph (1)(A) of this subsection that is offered for retail sale in an area that is not quarantined for citrus greening may be subject to seizure until documentation is provided that the nursery stock has not been in a citrus greening or citrus canker quarantine area. (c) Budwood. Budwood may be shipped into Texas, including the citrus zone, from any state or from outside of the United States, in accordance with of this chapter (relating to Importing Out-of- State Budwood). (d) Exemption. Commercial citrus fruit and citrus seed treated as prescribed in the USDA Treatment Manual in T203-p, having to do with seeds of citrus (Rutaceae family) to prevent pest transmission are exempt from the requirements set forth in this Subchapter A, Citrus Quarantines Labeling Requirements and Non-rebuttable Presumption. (a) General. (1) Each regulated article sold, distributed or transported within this state or grown for the purpose of sale or distribution shall have attached to the article, or to the container in which the article is planted, a waterproof tag or label upon which is legibly printed in permanent lettering the words "Produced in Texas" or "Produced in TX" and the Texas Nursery/Floral certificate number of the business location where the regulated article was produced for sale or distribution. (2) Unless satisfactory records that readily identify the articles as having been produced in Texas are provided, the absence of a tag or label required by this subsection creates a non-rebuttable presumption that the regulated article is a quarantined article and shall be destroyed in accordance with the applicable provisions of of the Code. (3) A regulated article with a tag or label required by this subsection that is determined by the inspector or other agent of the Department to have not been produced at the Texas business location represented by the registration number on the tag or label shall be seized and may be destroyed pursuant to 21.10(g) of this chapter (relating to Record Keeping; Rebuttable Presumption and Seizure), in accordance with the applicable provisions of of the Code. (4) The presence of a tag or label attached to a citrus plant, or to a container in which the citrus plant is planted, that states that the citrus plant did not originate in Texas, including "product of," "produced in," "originated in," or "grown in" any geographic area outside of Texas, creates a non-rebuttable presumption that the citrus plant is in violation of this section and shall be destroyed in accordance with the applicable provisions of of the Code. (b) Citrus plants intended for sale or distribution must have attached to each article or to the container in which the article is planted, a waterproof tag or label clearly identifying in permanent lettering the application date of the soil drench or in-ground granular systemic insecticide mandated in this section as "TREATMENT DATE: MM/DD/YYYY." The date format may be provided in another format such as 01AUG2017 or AUG that identifies the date of the required pre-shipment soil drench or soil incorporated treatment. (c) Each failure to comply with a requirement of this section constitutes a separate violation for which an administrative penalty may be assessed and each day a violation continues or occurs may be considered a separate violation. (d) Exemptions. (1) Identification. In lieu of identification tags during production, a nursery may develop a regulated article identification plan, as approved by the Department that defines procedures and methods used to identify the regulated articles under production at the location. Identification tags, as provided in this section, will be required once the regulated articles are sold or distributed. (2) Citrus nursery stock grown in a certified citrus nursery in accordance with Subchapter D of this chapter, is exempt from the labeling requirements in subsection (b) of this section when the citrus nursery stock: (A) is sold, moved or distributed to another certified citrus nursery; or (B) is intended for planting for commercial fruit production. (3) Budwood. (A) The original propagation record identifying the source tree of budwood must be maintained as required in of this chapter (relating to Record Keeping; Rebuttable Presumption; and Seizure) and made available to the Department upon request to verify the tree was produced in Texas. (B) The labeling of budwood for sale is specified in of this chapter (relating to Labeling and Handling of Budwood Produced in Foundation Block). (4) Retail buyers and end users are exempt from the requirements of this section. ADOPTED RULES March 16, TexReg 1631

4 Record Keeping; Rebuttable Presumption; and Seizure. (a) Each lot of regulated articles sold, transported or distributed within this state shall have a unique identifying number and be accompanied by an invoice, receipt, or other document(s) containing the following information: (1) the identifying number of each lot of the regulated articles; (2) the name, address, and telephone number of the producer of the regulated articles; (3) if in transit, the name, address, and telephone number of the person to whom the regulated articles are to be delivered; and (4) the genus or widely recognized common name of the regulated article(s) and the number of individual regulated articles distributed or transported. (b) A copy or copies of the document(s) required by subsection (a) of this section shall be provided to each person, other than a retail buyer, receiving all or a portion of the lot of regulated articles. (c) A person, other than a retail buyer, shall not accept a distribution of regulated articles from any person unless accompanied by the documentation required by subsection (a) and/or subsection (b) of this section. (d) Any person or organization who produces, sells, leases, or offers for sale or otherwise receives, or holds regulated articles for sale to any business outlet for resale purposes shall maintain a copy or copies of the document(s) required by subsection (a) and/or subsection (b) of this section for a period of at least three years after the sale or other distribution of the regulated article. Copies of the documents are not required to be maintained by the end user (grower or homeowner). (e) A person required to maintain records under subsection (d) of this section shall, upon written request of the Department, deliver copies of the records by mail, facsimile, commercial carrier, hand-delivery, electronic or other means during normal business hours. (f) A rebuttable presumption that the regulated articles for which records are to be maintained under subsection (d) of this section constitute quarantined articles is created if: (1) the distributor fails to produce records or copies of records pursuant to a written request under either subsection (e) of this section or this subsection; or (2) a regulated article with a tag or label required by this subchapter does not correspond with the records required to be maintained under subsection (d) of this section. (g) Regulated articles deemed quarantined articles under subsection (f) of this section shall be seized by the Department and shall not be further distributed without the written permission of the Department. (1) The Department shall hand-deliver notice of seizure order to the owner, or a representative of the owner at least 18 years of age, at the owner's place of business, listing the number and description of the regulated articles seized, stating the reason for seizure and the time period for rebutting the presumption set forth in subsection (f) of this section, and bearing the signature of the Department's inspector or representative seizing the regulated articles. (2) The presumption that regulated articles are quarantined articles may be rebutted by providing: (A) adequate documentation or other assurances regarding the state and country of origin of the regulated articles and the chain of custody of the regulated articles from origin to the person affected by the order; or (B) an adequate demonstration that the plants or plant products do not or cannot host a plant pest or plant disease for which a quarantine has been imposed under either state or federal law. (h) For each treatment applied pursuant to 21.6(b) of this chapter (relating to Restrictions), records shall be maintained by the nursery for four years following the last treatment date for a given lot of regulated articles. Required records for each mandatory treatment shall include, but are not limited to: (1) The lot numbers of plants treated; (2) The pesticides applied, including application dates; (3) EPA registration number of each product used; (4) Application rate and method of treatment; and (5) Name of applicator. (i) The nursery shall make available all required records to the Department upon request for inspection. (j) Each failure to comply with a requirement of this section constitutes a separate violation for which an administrative penalty may be assessed and each day a violation continues or occurs may be considered a separate violation. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER C. FOUNDATION BLOCK, SCION BLOCK, INCREASE BLOCK, AND PRODUCTION OF CERTIFIED BUDWOOD 4 TAC 21.31, 21.35, 21.36, 21.38, 21.41, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD TexReg 1632 March 16, 2018 Texas Register

5 Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER D. CITRUS NURSERY STOCK CERTIFICATION PROGRAM 4 TAC , The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption Facility Structural Requirements. (a) All quarantined articles, as defined in 21.5 of this chapter (related to Quarantined Articles), that are grown after January 1, 2018, from seed, cuttings, budding, cell culture or other means must be produced inside a certified pest exclusionary facility that meets USDA- APHIS-PPQ structural requirements, and requirements found in 7 CFR Part 301 (Subpart-Citrus Greening and Asian Citrus Psyllid, and Subpart-Citrus Canker). (b) To qualify as an exclusionary structure which meets certification requirements, a facility must include, at a minimum, each of the following: (1) Exterior walls and top; (A) Any combination of solid surfaces and screening may be used, as long as the structure meets or exceeds USDA-APHIS- PPQ insect exclusionary and citrus canker prevention requirements, including resistance to wind-blown rain. (B) Mesh size for any screening used in walls, doors, vent covers, or other parts of a structure to be operated under a certificate of registration shall not exceed 0.3 square millimeters (e.g., x mm or 0.5 x 0.6 mm). (2) Each approved structure must have a citrus free buffer area around the exterior of the approved structure of at least 100 feet. If a buffer area of 100 feet or more is not feasible, a minimum buffer area of 25 feet is allowed if the side of the structure facing citrus nursery plant material is constructed with a water-proof wall, or double-walled screening with a minimum of a 4-inch space between each screen. (3) Doors, doorways, and entryways must be designed and constructed to exclude wind-blown rain, and pest organisms; (A) All doorways shall have a positive pressure air curtain, double doors, or other mechanisms sufficient to prevent the entrance of any insect pests, both during operation of the door and while the door is closed. (B) All doors shall fit against the floor and door frame, so that no pest organisms or rain can enter the facility. (C) All facility emergency exit doors must be marked Emergency Exit Only and may not be used as an entrance. (D) Each entrance to the facility shall be equipped so that, prior to entering the facility, personnel must disinfect hands and arms and spray clothing and footwear with a product approved by the Department or USDA-APHIS-PPQ as effective against citrus canker. A footbath containing a product approved by the Department as effective against citrus canker must be located at each entrance and must be properly utilized on footwear by all persons prior to entering the facility. (E) Vehicles, equipment, and other articles used to handle or move citrus nursery stock must be treated in accordance USDA- APHIS-PPQ requirements, immediately before entering the premises. (4) Other openings. Except for doors, all exterior openings for cooling pads, fans, vents or other parts of a structure to be operated under a certificate of registration must be covered with screening, specified in subsection (b)(1)(b) of this section; and (5) The facility perimeter must facilitate drainage away from the structure. (c) The owner of the facility is responsible for maintaining the integrity of the facility and ensuring it remains pest-free. (d) The Department must be notified in writing immediately if a breach is detected at any time during the life cycle of the citrus stock, from propagation to point of sale Citrus Nursery Certification. (a) Any person who propagates citrus nursery stock for the purpose of commercial or noncommercial use within the citrus zone must hold a current certificate for a certified citrus nursery. Any person who propagates citrus nursery stock for the purpose of sale within the citrus zone must also hold a current nursery/floral license, in accordance with Chapter 22 of this title (relating to Nursery Products and Floral Items). (b) Application process. (1) An application for citrus nursery certification and a schedule of registration fees can be obtained from the department's website at: (2) An applicant should submit a completed application form and application fee according to directions on the form. (3) An application fee will be charged on the basis of $100 for facilities with a total enclosed insect exclusionary area of up to 25,000 square feet, plus $50 for each additional 25,000 square feet or fraction thereof. In case reinspection is necessary, a fee equal to the application fee will be charged. (c) Certification fee. An annual certification fee will be charged on the basis of $575 for facilities with a total enclosed insect exclusionary area of up to 25,000 square feet, plus $175 for each additional 25,000 square feet or fraction thereof. (d) Payment of certification fee. (1) Payment of the fee for renewal of a certificate for a certified citrus nursery is late if the fee has not been received by the department by the due date. (2) If payment of a certification fee is 30 or more days late, all citrus nursery stock at the location may be subject to a stop-sale order until full payment has been received. (e) Public display of certificate for a certified citrus nursery. The current certified citrus nursery certificate shall be kept on display at the certified citrus nursery in a location where it is readily visible to the public. ADOPTED RULES March 16, TexReg 1633

6 (f) Changes in a production greenhouse. (1) Before a facility covered under a certificate for a certified citrus nursery is modified in a way that, either during or after the modification, affects the walls, screening, doors or insect-exclusionary ventilation, the certificate holder must either: (A) enter into a compliance agreement with the department, outlining safeguarding conditions to maintain the facility insect free; or (B) remove all regulated materials from the facility and irrevocably surrender the certificate to the department. (2) If the size of the facility changes, the nursery shall submit an application indicating the change. Once an applicant has met certification requirements, an annual certification fee must be remitted to the department Sanitation Requirements. (a) All articles, equipment, plant material, supplies and personnel that enter or remain in a propagation facility shall be subject to Department approved sanitation requirements, including but not limited to: (1) Budding knives, clippers and other cutting implements shall be sterilized between different groups of propagations using a commercially available disinfectant or household bleach solution with a final strength of 0.5 percent. Sterilization solution shall be made fresh each day. (2) All equipment should be kept on site. (3) If gloves are worn in a certified citrus nursery, they must be disposable gloves or decontaminated daily and kept on-site. (4) Any person (including, but not limited to, their exposed skin and clothing, headgear, and tops and bottoms of shoes), tools or equipment entering a certified citrus greenhouse must be sanitized immediately prior to or during entry, as provided in of this chapter (relating to Facility Structural Requirements). (5) All growing or potting media or containers must be stored to prevent contamination by soil or water. (6) Non-certified nursery stock shall not be grown in or introduced into the same greenhouse or structure with certified citrus nursery stock. (7) It shall be the responsibility of the nursery to: (A) Prevent encroachment of Rutaceous plants of subfamilies Aurantioideae, Rutoideae and Toddalioideae, and the use of non-certified material, which could endanger the nursery site of becoming infested with injurious pests or diseases of citrus; and (B) Follow established sanitation procedures to prevent pest and disease infestation of the nursery. (8) Nursery areas and perimeters shall be maintained weedfree. (b) Violation(s) of sanitation requirements may result in the issuance of a stop-sale order, suspension or revocation of a certificate of registration, and/or administrative penalties. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER E. CITRUS NURSERY STOCK PROPAGATION IN AREAS OF TEXAS OUTSIDE THE CITRUS ZONE 4 TAC 21.80, 21.83, The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) SUBCHAPTER F. STATE CERTIFIED CLEAN CITRUS STOCK PROGRAM 4 TAC The adoption is made pursuant to Chapters 19, 71 and 73 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; the adoption is also made under Chapter 12 of the Code, which authorizes the Department to assess administrative penalties for violations related to Chapters 19 and 73 of the Code. Chapters 12, 19, 71 and 73 of the Texas Agriculture Code are affected by the adoption. TRD TexReg 1634 March 16, 2018 Texas Register

7 Jessica Escobar Assistant General Counsel Texas Department of Agriculture Proposal publication date: November 24, 2017 For further information, please call: (512) TITLE 16. ECONOMIC REGULATION PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION CHAPTER 76. WATER WELL DRILLERS AND WATER WELL PUMP INSTALLERS 16 TAC 76.10, 76.62, 76.70, 76.72, , , , , The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 76, 76.10, 76.62, 76.70, 76.72, , , , , and , in response to the four-year rule review regarding the Water Well Drillers and Pump Installers program, without changes to the proposed text as published in the November 24, 2017, issue of the Texas Register (42 TexReg 6594). The rules will not be republished. The adopted amendments are in response to its required fouryear rule review and the Commission rule simplification initiative. The Department published a Notice of Intent to Review its Water Well Driller and Pump Installer rules as part of the four-year rule review required under Government Code in the September 2, 2016, issue of the Texas Register (41 TexReg 6781). The Department reviewed these rules and determined that the rules are still essential in implementing the statutory provisions of Texas Occupation Code, Chapters 1901 and 1902, Water Well Drillers and Pump Installers. The rule review was adopted by the Commission at its November 16, 2016, meeting and published in the December 16, 2016, issue of the Texas Register (41 TexReg 9985). After thorough review of the rule chapter, the Department recognized language that could be simplified or improved. The adopted amendments are necessary for the rule simplification initiative and four-year rule review. The adopted amendments to delete unnecessary language from (A), (B), and (C) as they are already referenced more appropriately in The adopted amendments to clarify the timeframes in which the department will review an injurious water report and take any appropriate action to notify a well owner. The adopted amendments to clarify the procedures a driller must take when delivering a well report, aligning the rule with the text of Chapter The adopted amendments to correct a reference to another section in the rules. The adopted amendments to clarify the process for siting and drilling a well, add fiberglass as an approved material for casing a water well, and remove language that is no longer accurate. The adopted amendments to remove unnecessary language from the rule regarding defending a contested case. The adopted amendments to clarify the size of the cement filling when recompleting a deteriorated well. The adopted amendments to make a technical clarification. The adopted amendments to update the department's contact information for the Water Well and Pump Installer program. The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the November 24, 2017, issue of the Texas Register (42 TexReg 6594). The deadline for public comments was December 28, The Department did not receive any comments during the 30-day public comment period. The Board of Water Well Drillers and Pump Installers met on January 5, 2018, and recommended adopting the proposed rules without changes. At its meeting on February 20, 2018, the Commission adopted the rules without changes. The amendments are adopted under Texas Occupations Code, Chapter 51, 1901, and 1902, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51, 1901, and No other statutes, articles, or codes are affected by the adoption. Filed with the Office of the Secretary of State on February 27, TRD Brian E. Francis Executive Director Texas Department of Licensing and Regulation Effective date: April 1, 2018 Proposal publication date: November 24, 2017 For further information, please call: (512) TITLE 25. HEALTH SERVICES PART 1. DEPARTMENT OF STATE HEALTH SERVICES CHAPTER 265. GENERAL SANITATION SUBCHAPTER B. TEXAS YOUTH CAMPS SAFETY AND HEALTH 25 TAC The Executive Commissioner of the Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts new concerning Waiver; Appeal. New is adopted without changes to the proposed text as published in the December 22, 2017, issue of the Texas Register (42 TexReg 7258), and therefore will not be republished. ADOPTED RULES March 16, TexReg 1635

8 BACKGROUND AND JUSTIFICATION The new section is necessary to comply with House Bill 492, 85th Legislature, Regular Session, 2017, that amended Health and Safety Code, Chapter 141, by adding , relating to a waiver for certain youth camp programs from youth camp licensing. The purpose of new is to establish criteria that a youth camp program must meet to request a waiver from DSHS from youth camp licensing; establish criteria for which a waiver may be revoked; and establish the appeal process for a waiver that has been revoked. COMMENTS The 30-day comment period ended January 21, During this period, DSHS did not receive any comments regarding the proposed rules. STATUTORY AUTHORITY The new section is authorized by Health and Safety Code, , which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to administer the youth camp program; Health and Safety Code, , relating to a waiver for certain programs from youth camp licensing; and Government Code, , and Health and Safety Code, , which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Filed with the Office of the Secretary of State on March 1, TRD Barbara L. Klein General Counsel Department of State Health Services Effective date: March 21, 2018 Proposal publication date: December 22, 2017 For further information, please call: (512) TITLE 31. NATURAL RESOURCES AND CONSERVATION PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT CHAPTER 51. EXECUTIVE SUBCHAPTER G. NONPROFIT ORGANIZATIONS 31 TAC In a duly noticed meeting on November 2, 2017, the Texas Parks and Wildlife Commission adopted new , concerning Nonprofit Organizations. Sections are adopted with changes to the proposed text as published in the September 29, 2017, issue of the Texas Register (42 TexReg 5227). Section and are adopted without changes and will not be republished. The change to , concerning Criteria and General Requirements, is nonsubstantive, replacing a reference to "CRNP and the ONP" with a reference to "NP" in paragraph (7), which should have been reflected in the proposed text and is necessary to preserve the intent of the rulemaking and to prevent confusion. The change to , concerning Best Practices (General), also replaces a reference to "CRNP and the ONP" with a reference to "NP" in paragraph (6) for the same reasons identified in the discussion of the change to , makes nonsubstantive grammatical corrections to preserve references to the NP in the singular in paragraph (10), and a similar change to preserve pluralism in paragraph (12). The change to , concerning Best Practices (Officers and Directors), also makes nonsubstantive alterations to subsection (b) to replace references to "CRNP and the ONP" with references to "NP" in paragraph (1). The change to , concerning Best Practices (Fundraising), alters paragraph (5) to make a nonsubstantive grammatical correction by replacing "the" with "a". The change to , concerning Best Practices (Sponsorship), inserts the word "may" in subsection (a) to restore the sense of the sentence. The change is nonsubstantive. The Parks and Wildlife Code authorizes the department to work with nonprofit organizations to carry out the mission of the department. Parks and Wildlife Code, , requires the Parks and Wildlife Commission (the commission) to adopt rules to "establish the best practices for nonprofit partners." Parks and Wildlife Code, , requires the commission to adopt rules regarding "state standards and safeguards for accounting for state assets held by the nonprofit partner." Parks and Wildlife Code, , authorizes the commission to designate an official nonprofit partner dedicated to meeting department goals. Parks and Wildlife Code, (f), requires the commission to establish by rule guidelines for the official nonprofit partner s solicitation and acceptance of sponsorships and the best practices of the official nonprofit partner. Similarly, Government Code, Chapter 2255, requires a state agency to adopt rules regarding the relationship between donors and the agency, including the agency s employees if the agency is authorized to accept donations or if "a private organization exists that is designed to further the purposes and duties of the agency." Tex. Gov t Code, (a). Nonprofit partners serve an important function for the department. These organizations provide valuable financial and in-kind support to the department. The current rules, promulgated in 2007, categorize each of the department s nonprofit partners as a general nonprofit partner (GNP), a closely related nonprofit partner (CRNP), or the official nonprofit partner (ONP). A general nonprofit partner is a nonprofit partner that is not a closely-related nonprofit partner or the official nonprofit partner and has an agreement of any kind with the department, has a representative serving on a department or commission advisory committee, or otherwise has a relationship with the department. A closely related nonprofit partner is a nonprofit partner whose primary purpose is to benefit a specific department property, facility or program. Closely related nonprofit partners include "friends groups" (e.g., Friends of Cedar Hill, Friends of San Angelo State Park). The official nonprofit 43 TexReg 1636 March 16, 2018 Texas Register

9 partner is the entity designated as the official nonprofit partner of the department by the commission in accordance with Texas Parks and Wildlife Code, In 2001, the commission designated the Texas Parks and Wildlife Foundation as the department s official nonprofit partner. Because the ONP and CRNPs enjoy a closer relationship with the department, the rules impose additional requirements on those organizations. The term "nonprofit partner" refers collectively to GNPs, CRNPs and the ONP. The department has determined that in practice, the category of GNP is superfluous and therefore unnecessary. Listing GNP s produces little useful information to the department and is problematic in light of the time and expense incurred by the department with respect to recordkeeping and reporting functions. Accordingly, the amendments as adopted eliminate the category of GNP, all provisions applicable to GNPs, and all references to GNPs. Additionally, in the interest of clarity the amendments eliminate individual references to the ONP and CRNPs and instead refer to those entities generically as Nonprofit Partners (NPs), where appropriate. The amendment to , concerning Definitions, eliminates the definition for General nonprofit partner (GNP) and makes nonsubstantive conforming changes as necessary. The amendment to , concerning Criteria and General Requirements, removes provisions relating to the designation and listing of General Nonprofit Partners and makes nonsubstantive conforming changes as necessary. The amendment to , concerning Best Practices (General), eliminates provisions pertaining to GNPs and makes nonsubstantive conforming changes as necessary. The amendment to , concerning Best Practices (Officers and Directors), removes individual references to the ONP and CRNP and replaces them with a generic reference to Nonprofit Partners (NPs). The amendment also makes nonsubstantive conforming changes as necessary. The amendment to , concerning Best Practices (Fundraising), makes nonsubstantive edits to clarify existing best practices for nonprofit partner fundraising. The amendment to , concerning Best Practices (Sponsorship), requires NPs to comply with non-regulatory written guidance from the department in addition to the requirements of the rules. The department has determined that the rules cannot address every possible scenario in detail; thus, the department intends to create supporting guidance to do so. The amendment also allows for written approval of sponsorship recognition to be provided by department employees other than regional directors, which is intended to accommodate organizational differences within the department, since the position of regional director does not exist in every division within the agency. The amendment also makes nonsubstantive conforming edits as necessary. The amendment to , concerning Department Procedures, eliminates provisions related to General Nonprofit Partners and adds a proviso to subsection (b) that the department will not obligate NP funds except by written, signed agreement. The amendment also removes the word "hold" from subsection (b) because the department can obligate but not hold such funds. The department received no comments opposing adoption of the rules as proposed. The department received three comments supporting adoption of the rules as proposed. No groups or associations commented on the proposed rules. The rules are adopted under the authority of Parks and Wildlife Code, , , , and Government Code, Criteria and General Requirements. All NPs must meet the requirements and criteria of this section. (1) In order to be considered a NP of the department, the nonprofit organization must be designated by the commission voting in a public meeting. The commission will designate an ONP, as necessary. (2) The commission may remove a nonprofit partner from the NP list. (3) All NPs must carry out the fiscal, business, legal, and tax responsibilities of a nonprofit entity as required by state and federal law. (4) NPs must have obtained from the Internal Revenue Service a valid determination letter that it is an organization described in 501(c) of the Internal Revenue Code of 1986 (Title 26, United States Code), as amended. Such a letter must be obtained no later than 180 days after being designated by the commission as a NP. (5) A NPs' work with the department must be consistent with the department's mission and goals. (6) Upon dissolution, a NP may be required to dispose of funds raised for the benefit of the department in a way that will benefit the department, in accordance with applicable law. (7) NP s must be incorporated in accordance with the Texas Nonprofit Corporation Act (Business Organizations Code, Chapter 22). (8) Within 60 days of its designation as a nonprofit partner, each NP must enter into an agreement with the department detailing the responsibilities and duties of the nonprofit partner and the department. Each NP must maintain such an agreement with the department for as long as the entity is designated as a NP. The agreement may also address the obligations of a NP upon termination of the relationship between the NP and the department, including termination resulting from the dissolution of the NP. (9) NPs must promptly notify the department of any change in its legal or tax-exempt status Best Practices (General). (a) NPs must comply with the general best practices prescribed in this subsection. (1) NPs shall not hold or obligate department funds. (2) NPs shall comply with all applicable rules, regulations, and laws, including all applicable laws regarding discrimination based on race, color, national origin, sex, age, and disability. (3) NPs shall not use or authorize the use of department intellectual property, including trademarks, logos, name, or seal, without the express written agreement of the department. (4) NPs shall not employ a department employee in a paid position or otherwise provide compensation or a direct personal benefit to a department employee. Provided, however, unless otherwise prohibited by law, benefits authorized by Penal Code, Chapter 36, are not prohibited by this subsection. (5) NPs may use equipment, facilities, or services of employees of the department only in accordance with a written agreement ADOPTED RULES March 16, TexReg 1637

10 that provides for the payment of adequate compensation and/or identifies the benefit to the department for such use. Notwithstanding this subsection, a NP may use department facilities to the same extent and for the same fee as members of the public. (6) NPs shall conduct business in a way that will ensure public access and transparency. As used in this subsection, "transparency" shall mean that NP s business practices and internal processes are conducted in a way that is open, clear, measurable, and verifiable. (7) NPs shall file with the department and make available to the public an annual report that includes a list of the primary activities undertaken during the previous year, a summary of significant achievements and challenges over the previous year, and other information requested by the department. (8) Regardless of whether a NP is required to file an IRS 990 with the Internal Revenue Service, each NP must complete and file an IRS 990 with the department each year, regardless of income. (9) NPs shall file with the department their articles of incorporation, by-laws, and most recent financial statements, and any updates to these documents upon request of the department. (10) A NP shall not engage in activities that would require it or a person acting on its behalf to register as a lobbyist under Texas law, Texas Government Code, Chapter 305. However, this subsection is not intended to restrict a NP from providing information to the legislature or to other elected or appointed officials. (11) NPs shall not donate funds to a political campaign or endorse a political candidate. (12) NPs shall notify the department of all meetings and allow a department representative to attend all meetings, including, but not limited to, meetings of their general membership, managing board, and committees. Meeting notices must be provided to the department sufficiently in advance of the meeting so that the department representative has ample opportunity to attend. Such notice may be provided by letter, , or telephone. A CRNP should also notify other CRNPs associated with the property, facility, or program of all meetings and allow a representative to attend. (b) In addition to subsection (a) of this section, the ONP must comply with the general best practices prescribed in this subsection. (1) The ONP must have an annual audit by an independent accounting firm and shall make the results of that audit available to the department. (2) The ONP must maintain an adequate directors and officers liability insurance policy Best Practices (Officers and Directors). (a) All officers and directors of NPs must receive a copy of or a link to the department's Land and Water Resources Conservation and Recreation Plan. (b) In addition to subsection (a) of this section, NPs must comply with the best practices regarding officers and directors as prescribed in this section. (1) NPs must adopt and maintain a conflict of interest policy, which includes safeguards to prevent board members or their families from benefiting financially from any business decision of the NP. (2) NPs shall ensure that any compensation paid to executives or managers is reasonable. (3) NPs shall not elect or designate or otherwise select a department employee as an officer or director, other than as a nonvoting uncompensated representative of the department. (4) NPs shall hold regular meetings of its Board of Directors. (5) NPs shall ensure that each board member and/or director is fully informed of activities and shall provide the following information to new board members: (A) articles of incorporation and by-laws; (B) most recent financial statements; (C) department rules on NPs and sponsorship; and (D) current agreements with the department Best Practices (Fundraising). (a) All NPs must comply with the requirements of this subsection regarding fundraising. (1) NPs may conduct fundraising to provide additional funds for department operations, to enhance department programs, to provide long-term endowments for department programs, to facilitate special projects, or otherwise support the department in carrying out its mission, but only as agreed in writing by the department in advance. (2) NPs may undertake programs for the benefit of the department, so long as such programs are related to and supportive of the department's mission and are agreed to in writing by the department in advance. A single agreement may cover multiple programs. (3) NPs shall decline donations that require actions, including recognition, by the department for which the department has not given prior written consent. (4) Funds accepted by a NP for the benefit of the department are to be managed as a reasonably prudent person would manage funds if acting on his or her own behalf and such funds are to be accounted for according to Generally Accepted Accounting Principles (GAAP). (5) All projects undertaken for the department by a CRNP must be related to and supportive of the facility, property, or program with which a CRNP is associated or must further the CRNP's mission related to the facility, property or program. (6) All donations to a CRNP must benefit the facility, property, or program with which the CRNP is associated or must further the CRNPs mission related to the facility, property, or program. (7) For purposes of this subsection, a donation for the purpose of defraying the CRNP's operating costs furthers the CRNP's mission related to the facility, property, or program. (8) NPs shall adopt procedures that address acceptance and granting of funds raised to benefit projects and/or programs of the department. (b) Nothing in this subchapter shall limit the ability of a NP to make an unrestricted cash donation to the department. Such a donation may be for a specific purpose or program. (c) NPs may work together towards a common fundraising goal for the benefit of the department, consistent with the requirements of this subchapter Best Practices (Sponsorship). (a) NPs may solicit and accept sponsorships for department programs, so long as the NP complies with the provisions of this subsection and other written guidance that may be provided by the department. 43 TexReg 1638 March 16, 2018 Texas Register