TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 30. COMMUNITY DEVELOPMENT

SUBCHAPTER A. TEXAS COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM

The Texas Department of Agriculture (Department) adopts amendments to the Texas Administrative Code, Title 4, Part 1, Chapter 30, Subchapter A, Division 1, §30.3, relating to Program Overview with changes to the proposal as published in the November 29, 2019, edition of the Texas Register (44 TexReg 7260). This rule will be republished.

The Texas Department of Agriculture (Department) adopts the repeal of Subchapter A, Division 3, §30.60, relating to the Disaster Relief (DR) Fund, and §30.61, relating to the Urgent Need (UN) Fund; and new Subchapter A, Division 3, §30.60 relating to the State Urgent Need (SUN) Fund, without changes to the proposal as published in the November 29, 2019, edition of the Texas Register (44 TexReg 7260). These rules will not be republished.

The repeal of §30.60 and §30.61 removes rules relating to the Disaster Relief (DR) Fund and the Urgent Need (UN) Fund, two funding categories in the Texas Community Development Block Grant program no longer administered by the Department. New §30.60 creates and implements rules related to the State Urgent Need Fund, which replaces the former disaster relief fund category. The new rules are related to the State Urgent Need Fund application cycle, eligibility requirements, and selection procedures. Amendments to §30.3 reflect the changes made as a result of the repeal and new rules.

The Department received one comment in support of the proposal from Madison Thomas, Economic Development Program Manager, Brazos Valley Council of Governments.

DIVISION 1. GENERAL PROVISIONS

4 TAC §30.3

The adoption is made under Texas Government Code §487.051, which designates the Department as the agency to administer the state's community development block grant non-entitlement program, and §487.052, which provides authority for the Department to adopt rules as necessary to implement Chapter 487.

The code affected by the adoption is Texas Government Code, Chapter 487.

§30.3.Program Overview.

(a) Fund categories. TxCDBG Program assistance is available through the following seven fund categories.

(1) Community Development (CD) Fund provides assistance for public facilities, basic infrastructure projects such as sewer or water improvements, street and drainage improvements, and housing activities, or other eligible activities as specified by the Department.

(2) Texas Capital Fund (TCF) is designed to support rural business development, retention and expansion by providing grants and/or loans for real estate or infrastructure development, or the elimination of deteriorated conditions. TCF is composed of five programs:

(A) Real Estate Program provides grants and/or loans to purchase, construct, or rehabilitate real estate that is wholly or partially owned by a community and leased to a specific benefiting business for the purpose of creating or retaining permanent jobs in primarily rural communities;

(B) Infrastructure Development Program provides grants and/or loans for infrastructure development, such as construction or improvement of water/wastewater facilities, public roads, natural gas-line main, electric-power services, and railroad spurs, for the purpose of creating or retaining permanent jobs in primarily rural communities;

(C) Downtown Revitalization Program (DRP) provides grants for public infrastructure to foster and stimulate economic development in rural downtown areas;

(D) Main Street Improvements Program is designed to aid in the prevention or elimination of slum or blighted areas and provides assistance to expand or enhance public infrastructure in historic main street areas; and

(E) Small and Microenterprise Revolving Fund (SMRF) is available to communities partnering with a non-profit organization to provide loans to local small businesses.

(3) Colonia Fund is available for projects in severely distressed unincorporated areas which meet the definition of a colonia. The Colonia Fund is divided into five programs:

(A) Colonia Fund Construction (CFC) program is available for eligible activities designed to meet the needs of colonia residents, such as water and wastewater improvements, housing rehabilitation for low and moderate income households, the payment of assessments levied against properties owned and occupied by persons of low and moderate income to recover the capital cost for a public improvement, and other improvements including street paving and drainage;

(B) Colonia Fund Planning (CFP) program provides assistance for planning activities that prepare colonia areas for needed water, sewer and housing improvements. Assistance is provided to gather information regarding demographics, housing, land use statistics, public facilities and public services;

(C) Colonia Economically Distressed Areas Program (CEDAP) provides assistance to colonia areas to connect to a water and/or sewer system project funded by the Texas Water Development Board Economically Distressed Area Program (TWDB EDAP);

(D) Colonia Self-Help Center Program, which is administered by the Texas Department of Housing and Community Affairs (TDHCA), provides assistance to low-income and very low-income individuals and families living in colonias to finance, refinance, construct, improve or maintain safe and suitable housing; and

(E) Colonias-to-Cities Initiative Program (CCIP) provides assistance for basic infrastructure considered necessary for a colonia area to be annexed by an adjoining city.

(4) Planning/Capacity Building (PCB) Fund provides assistance to conduct planning activities that assess local needs, develop strategies to address local needs, build or improve local capacity to undertake future community development projects, or that include other needed planning elements (including telecommunications and broadband needs).

(5) State Urgent Need (SUN) Fund is available for assistance and recovery following a disaster situation.

(6) Small Towns Environment Program (STEP) Fund provides financial assistance to units of general local government that are willing to address water and sewer needs through self-help methods via local volunteers.

(7) Fire, Ambulance & Services Truck (FAST) Fund provides assistance to rural communities for fire, ambulance, and similar emergency vehicle response needs.

(b) Fund allocations. Of the state's annual CDBG allocation from HUD, the department allocates a certain percentage to each TxCDBG fund category. For specific fund allocations, refer to the department's current TxCDBG Action Plan.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2020.

TRD-202000118

Tim Kleinschmidt

General Counsel

Texas Department of Agriculture

Effective date: February 2, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 463-7476


DIVISION 3. ADMINISTRATION OF PROGRAM FUNDS

4 TAC §30.60, §30.61

These repeals are adopted under Texas Government Code §487.051, which designates the Department as the agency to administer the state's community development block grant non-entitlement program, and §487.052, which provides authority for the Department to adopt rules as necessary to implement Chapter 487.

The code affected by this adoption is Texas Government Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2020.

TRD-202000124

Tim Kleinschmidt

General Counsel

Texas Department of Agriculture

Effective date: February 2, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 463-7476


4 TAC §30.60

The adoption is made under Texas Government Code §487.051, which designates the Department as the agency to administer the state's community development block grant non-entitlement program, and §487.052, which provides authority for the Department to adopt rules as necessary to implement Chapter 487.

The code affected by the adoption is Texas Government Code, Chapter 487.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2020.

TRD-202000119

Tim Kleinschmidt

General Counsel

Texas Department of Agriculture

Effective date: February 2, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 463-7476


PART 2. TEXAS ANIMAL HEALTH COMMISSION

CHAPTER 44. BOVINE VIRAL DIARRHEA

4 TAC §44.1, §44.2

The Texas Animal Health Commission in a duly noticed meeting on December 10, 2019, adopted §44.1, concerning Definitions, and §44.2, concerning General Requirements, within a new Chapter 44. The sections within new Chapter 44 are adopted with changes to the proposed text as published in the September 27, 2019, issue of the Texas Register (44 TexReg 5461). The change to §44.1, concerning Definitions, corrects grammatical errors in the proposed rule text in §44.1(2) and (3). The rules will be republished. The change to §44.2, concerning General Requirements, provides additional clarification that the rule applies only to those sellers that knowingly sell cattle persistently infected with bovine viral diarrhea. The changes are made in §44.2(a). The rules will be republished.

BACKGROUND AND JUSTIFICATION

Bovine viral diarrhea (BVD) is an economically impactful communicable disease of cattle with a worldwide prevalence that is endemic in most states. BVD is caused by the bovine viral diarrhea virus, a Pestivirus. The major reservoir responsible for disease spread geographically is the persistent infection syndrome (BVDV-PI) seen in calves. BVDV can result in impacts to stocker and feedlot operations by causing immunosuppression and contributing to Bovine Respiratory Disease Complex, or "Shipping Fever." This can lead to reduced feed conversion and weight gain, and increases in days on feed, morbidity, treatment cost, and mortality. In regards to cow/calf and dairy operations, all of these impacts may occur plus decreased conception rates, abortions, weak calves, and congenital defects.

The dam can be transiently infected during pregnancy and her calf become infected during development in the womb. If this infection occurs between days 40 and 120 of the pregnancy, the calf's immune system may not recognize the BVD Virus as foreign, and no natural immunity is produced in the calf. The calf becomes persistently infected (PI), and produces large numbers of the virus for the remainder of its life. The calf may display a normal appearance with immunosuppression or may experience acute death, poor performance, or mucosal disease.

Texas stakeholders have indicated interest in addressing the disposition of known BVDV-PI animals. The TAHC convened a group of stakeholders to discuss the negative implications of the disease on the Texas cattle industry. Stakeholder groups represented at the meeting included Texas Southwest Cattle Raisers Association (TSCRA), Texas Cattle Feeder Association (TCFA), Livestock Marketing Association (LMA), Independent Cattlemen's Association (ICA), Texas Farm Bureau (TFB), Texas Association of Dairymen (TAD), Texas A&M AgriLife, USDA, and Texas A&M Veterinary Medical Diagnostic Laboratory (TVMDL).

The commission may develop rules necessary to control significant disease risks. BVDV adversely affects both health and productivity. The losses due to transient infection are diarrhea, decreased milk production, reproductive disorders, increased occurrence of other diseases, and death. The losses from fetal infection include abortions; congenital defects; weak and abnormally small calves; unthrifty, persistently infected (PI) animals; and death among PI animals. Additionally, PI animals serve as a continuous reservoir of virus exposing pen mates and adjacent cattle to BVD virus. To provide Texas cattle some mitigation from the risk of exposure to PI cattle, Chapter 44, entitled "Bovine Viral Diarrhea" is being added.

HOW THE SECTIONS WILL FUNCTION:

Section 44.1 is for definitions used in this chapter and contains the following definitions: (1) Bovine Viral Diarrhea (BVD); (2) Bovine Viral Diarrhea Virus Persistently Infected (BVDV-PI) cattle; (3) BVDV Retest; (4) Cattle; (5) Commission.

Section 44.2 contains the primary element of a BVDV Program. Subsection (a) provides that BVDV-PI cattle are restricted from sale unless a potential buyer is notified in writing on or before the time of sale that the cattle are persistently infected.

Subsection (b) provides that cattle that originally test positive but later are determined by confirmatory test to be transiently infected, only, are not subject to the disclosure requirements of this rule.

Subsection (c) provides that the Commission will establish a BVDV program review working group with the interested stakeholders that will meet on an annual basis to determine the need for enhanced rules or continuation of current rules.

FISCAL NOTE

Mrs. Larissa Schmidt, Chief of Staff, Texas Animal Health Commission, has determined for the first five-year period the rules are in effect, there will be no significant additional fiscal implications for state or local government because of enforcing or administering the rules.

SUMMARY OF COMMENTS AND AGENCY RESPONSE

The 30-day comment period ended October 28, 2019.

During this period, TAHC received rule comments from the Texas and Southwestern Cattle Raisers Association (TSCRA) and four individuals. Of the five comments received, and to the extent the TAHC could determine, one commenter opposed adoption, three commenters supported adoption, and one commenter did not indicate support or opposition. A summary of comments relating to the rules and TAHC's responses follows:

Comment: One commenter stated animals that are BVDV positive must be reported as tested by veterinarians and a follow-up mechanism is needed so a buyer can determine the seller knowingly disposed of a BVDV persistently infected animal.

Response: TAHC will take the recommendation under advisement for future rulemaking, if necessary. The rule requires the seller of a known BVDV-PI animal to notify the buyer of the persistent infection on or before the time of sale. The TAHC will not be involved in testing and test results will not be reported to the TAHC. No changes were made as a result of the comment.

Comment: One commenter recommended that animals tested utilizing a pooled sample should sale with a status of "�from a test-positive pool/group" or from a "test-negative pool/group".

Response: TAHC will take the recommendation under advisement for future rulemaking, if necessary. The rule as published requires the seller of a known BVDV-PI animal to notify the buyer of the persistent infection on or before the time of sale. This requirement applies to all animals in a pooled sample unless an animal from the pooled sample is individually BVDV retested and the retest results are negative. No changes were made as a result of the comment.

Comment: One commenter was concerned the rule creates a state policy that sellers shall not sell BVDV-PI cattle, even unknowingly, and that requiring written disclosure on the day of sale is going to place an undue burden on the local commission company. The individual commented that it should be sufficient if the auctioneer announces the BVDV-PI status.

Response: The commission disagrees with the comment and responds that notification is required for cattle with positive results on a BVDV antigen detection test that are not retested, or that have a positive result on a BVDV retest. If the owner has not BVDV tested the cattle, the status is unknown. The rule does not require testing, it requires disclosure of BVDV test-positive animals. However, TAHC has no issue with including language regarding a seller that knowingly sells BVDV-PI animals in the rule if it helps clarify the concerns of the regulated community and has made the changes accordingly.

Regarding the written disclosure concerns, the TAHC agrees a commission merchant or other person acting as an agent of the seller should announce the BVDV-PI status prior to the sale of any known positive animal and this verbal announcement is sufficient for prospective buyers. However, the agency also believes, given the common practice of purchasing multiple animals and commingling animals, that the seller's agent must share the written notification with the ultimate buyer of the BVDV-PI animal. No changes were made as a result of the comment.

Comment: One commenter asked for additional information regarding the required forms of animal identification and whether pooled samples for PCR or Virus Isolation are an acceptable negative test, and, if so, the maximum number of samples that can be pooled together for a test.

Response: The commenter will be advised that this rule does not require identification; however, pursuant to existing 4 TAC §43.2 and §50.3, certain cattle are required to have TAHC approved official permanent identification. Pooled ELISA and PRC samples are acceptable tests and the sample submitter should follow the test label directions or contact the testing laboratory directly for guidance regarding the maximum number of samples that can be submitted for a pooled test. This will be addressed directly with the individual commenter and other producers and organizations as part of stakeholder outreach. No changes were made as a result of the comment.

Comment: The Texas and Southwestern Cattle Raisers Association commented that the rule simply requires cattle producers to provide written disclosure to a purchase of an animal that is determined to be persistently infected with BVD. This improvement will allow cattle producers to make well-informed decisions and reduces the risk of unintentionally exposing cattle to BVD, especially during pregnancy.

Response: TAHC respectfully agrees. No changes were made as a result of the comment.

STATUTORY AUTHORITY

The new §44.1 and §44.2 within Chapter 44 are adopted under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code. The commission is vested by statute, §161.041(a), with the requirement to protect all livestock, domestic animals, and domestic fowl from disease. The commission is authorized, through §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock.

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

Pursuant to §161.112, entitled "Rules" the commission shall adopt rules relating to the movement of livestock, exotic livestock, and exotic fowl from livestock markets and shall require tests, immunization, and dipping of those livestock as necessary to protect against the spread of communicable diseases.

The adopted rules do not affect other sections or codes.

§44.1.Definitions.

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

(1) Bovine Viral Diarrhea (BVD) - Bovine viral diarrhea is a viral disease of cattle that is caused by the bovine viral diarrhea virus (BVDV).

(2) BVDV Persistently Infected (BVDV-PI) Cattle--Any cattle with positive results on a BVDV antigen detection test (e.g., ELISA [enzyme-linked immunosorbent assay], PCR [polymerase chain reaction], or BVDV immunohistochemistry [IHC]) that either are not retested, or that have a positive result on a BVDV retest.

(3) BVDV Retest--A subsequent test for BVDV using an antigen detection test (e.g., ELISA [enzyme-linked immunosorbent assay], PCR [polymerase chain reaction], or BVDV immunohistochemistry [IHC]).

(4) Cattle--All dairy and beef animals (genus Bos).

(5) Commission--The Texas Animal Health Commission.

§44.2.General Requirements.

(a) A seller that knowingly sells BVDV Persistently Infected Cattle must disclose the Bovine Viral Diarrhea Virus Persistently Infected status in writing to the buyer prior to or at the time of sale.

(b) Cattle that initially test positive to a BVDV antigen detection test may be administered a BVDV retest. If the retest results are negative, the cattle are considered to have been transiently infected (not persistently infected) and are not covered under this rule.

(c) The Commission shall establish a BVDV Program Review Working Group consisting of members from the cattle industry, veterinary profession, veterinary diagnostic laboratory, veterinary college, extension service and agency representatives. The working group shall annually review the BVDV control program and make recommendations to the Commission on amendments to program components or operation, and on whether or not the program should be continued.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 13, 2020.

TRD-202000120

Mary T. Luedeker

General Counsel

Texas Animal Health Commission

Effective date: February 2, 2020

Proposal publication date: September 27, 2019

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