TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 1. GENERAL PROCEDURES

SUBCHAPTER N. FOOD AND FIBERS RESEARCH GRANT PROGRAM RULES

4 TAC §§1.920 - 1.928

The Texas Department of Agriculture (Department) proposes the repeal of 4 Texas Administrative Code, Chapter 1, Subchapter N, regarding Food and Fibers Research Grant Program Rules, §§1.920 - 1.928.

Section 56 of Senate Bill 703, 87th Texas Legislature, Regular Session (2021), among other things, repealed Chapter 42, Texas Agriculture Code, which created the Food and Fibers Research Grant Program. As a result of the repeal of Chapter 42, Texas Agriculture Code, rules for the Food and Fibers Research Grant Program are no longer necessary.

LOCAL EMPLOYMENT IMPACT STATEMENT: The Department has determined that the proposed repeals 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.

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

1. the proposed repeals do not create or eliminate a government program;

2. implementation of the proposed repeals does not require the creation or elimination of employee positions;

3. implementation of the proposed repeals does not require an increase or decrease in future legislative appropriations to the Department;

4. the proposed repeals do not require an increase or decrease in fees paid to the Department;

5. the proposed repeals do not create a new regulation;

6. the proposed repeals will repeal an existing regulation;

7. the proposed repeals do not increase or decrease the number of individuals subject to the rule's applicability; and

8. the proposed repeals do not positively or adversely affect this state's economy.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: Mindy Weth Fryer, Director for Contracts and Grants, has determined that for each year of the first five years the proposed repeals are in effect, enforcing or administering the proposed repeals does not have foreseeable implications relating to costs or revenues of state or local governments.

PUBLIC BENEFITS AND PROBABLE ECONOMIC COST: Ms. Fryer has determined that for each year of the first five-year period the proposed repeals are in effect, the public benefit will be the elimination of rules that will no longer be administered by the Department. Ms. Fryer has also determined that for each year of the first five-year period the proposed repeals are in effect, there will be no cost to persons who are required to comply with the proposed repeals.

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 repeals, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002, are not required.

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

The repeals are proposed under Section 12.016 of the Texas Agriculture Code, which provides that the Department may adopt rules as necessary for the administration of its powers and duties under the Code. No other sections are affected by these repeals.

§1.920.Definitions.

§1.921.Purpose.

§1.922.Administration.

§1.923.Council.

§1.924.Council Meetings.

§1.925.Primary Research Areas.

§1.926.Proposal Submission.

§1.927.Proposal Review and Selection.

§1.928.Reporting Requirements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 21, 2021.

TRD-202104242

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 5, 2021

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


PART 2. TEXAS ANIMAL HEALTH COMMISSION

CHAPTER 51. ENTRY REQUIREMENTS

4 TAC §§51.5, 51.10, 51.16

The Texas Animal Health Commission proposes amendments to Title 4, Texas Administrative Code, Chapter 51 titled "Entry Requirements". Specifically, amendments are proposed to §51.5 concerning Movement of Quarantined Animals, and §51.10, concerning Cervidae. The Texas Animal Health Commission proposes the addition of §51.16, concerning Enforcement and Penalties.

The proposed amendments to §51.5 update the reference from §161.061 of the Texas Agriculture Code to §45.3 of the Texas Administrative Code in accordance with Senate Bill 705 enacted by the Texas Legislature during the 87th Regular Session. Senate Bill 705 amended §161.041 and §161.061 of the Texas Agriculture Code, and now requires the commission to adopt rules listing the diseases that require control or eradication. The commission adopted amendments to Chapter 45, titled "Reportable and Actionable Diseases", in a duly noticed meeting on September 21, 2021. The proposed amendments to §51.5 also clarify the Executive Director's approval is required for each consignment of animals moving to slaughter or to a quarantined feedlot for those animals affected with or recently exposed to an infectious, contagious, or communicable disease or that originate from quarantined herds or flocks. Grammatical and editorial changes are also proposed for consistency and improved readability. In §51.5(b), poultry and birds are proposed for deletion because "animal" encompasses the terms. "Animal" is defined in 4 TAC §51.1 to include livestock, exotic livestock, domestic fowl, and exotic fowl.

In §51.10, concerning Cervidae, amendments are proposed to subsections (a) and (b) to control and reduce the incidence of CWD entering Texas, as well as provide clearer guidelines of entry requirements for CWD susceptible species. CWD is a degenerative and fatal neurological communicable disease recognized by the veterinary profession that affects susceptible cervid species. CWD can spread through natural movements of infected animals and transportation of live infected animals or carcass parts. Specifically, prions are shed from infected animals in saliva, urine, blood, soft-antler material, feces, or from animal decomposition, which ultimately contaminates the environment in which CWD susceptible species live. CWD has a long incubation period, so animals infected with CWD may not exhibit clinical signs of the disease for months or years after infection. The disease can be passed through contaminated environmental conditions, and may persist for a long period of time. Currently, no vaccine or treatment for CWD exists. Grammatical and editorial changes are also proposed for improved readability and consistency. Specifically, certain terms and provisions, such as the addition of reindeer and caribou, are proposed to be consistent with Title 4 Texas Administrative Code Chapter 40.

The proposed new section, §51.16 concerning Enforcement and Penalties, describes the scope of violations and respective penalties as prescribed by Chapter 161 of the Texas Agriculture Code. Subsection (b) provides that administrative penalties may not exceed $5,000 each day a violation continues or occurs.

FISCAL NOTE

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

PUBLIC BENEFIT NOTE

Ms. Sines determined that for each year of the first five years the rules are in effect, the anticipated public benefit as a result is updating the rule to align with the requirement enacted during the 87th Regular Legislative Session that the Texas Animal Health Commission adopt rules listing the diseases that require control or eradication. As such, the proposed amendments update the reference to the diseases identified in Chapter 45 of the Texas Administrative Code.

The proposed amendments to §51.10(a) and (b) would reduce the risk of CWD entering Texas and clarify entry requirements for CWD susceptible species into Texas, which would improve understanding of entry permit approval or denial. Additionally, terms are amended for consistency with other chapters in Title 4 of the Texas Administrative Code. Further, grammatical and editorial changes are proposed in both sections for improved readability.

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.

MAJOR ENVIRONMENTAL RULE

The commission determined that Texas Government Code §2001.0225 does not apply to the proposed amendments because the specific intent of these rules is not primarily to protect the environment or reduce risks to human health from environmental exposure and, therefore, is not a major environmental rule.

TAKINGS ASSESSMENT

The commission determined that the proposal does not restrict, limit, or impose a burden on an owner's right to his or her private real property that would otherwise exist in the absence of government action. Instead, the proposed rules in part relate to the handling of animals, including requirements concerning movement, pursuant to 4 TAC §59.7. As such, the activities under the proposed amendments do not constitute a takings and do not require a Takings Assessment pursuant to Texas Government Code §2007.043.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

The commission determined that because the proposed rules would not result in any direct economic effect on any small business, microbusiness, or rural community, neither the economic impact statement nor the regulatory flexibility analysis described in Texas Government Code, Chapter 2006, is required.

Although the commission does not predict adverse economic impacts to those directly regulated by the commission in Texas, the commission reviewed 97 permit requests in 2020 from 46 out-of-state consignors. As such, the commission considered alternatives to proposing the 25-mile radius requirement for entry. The commission considered proposing no action, halting all interstate movements, implementing a radius of 15 or 25 miles, and a radius of 25 miles unless otherwise epidemiologically determined by the Executive Director. Based on the recent discoveries of CWD in free-ranging, captive and herds certified in an Approved State CWD Herd Certification Program in Texas and other states, as well as the varying degree of disease response, testing and surveillance conducted by other states, the commission found the 25-mile radius with the flexibility for the Executive Director to epidemiologically evaluate entry requests on a case-by-case basis, necessary to protect the health of Texas' CWD susceptible species and prevent adverse economic impacts associated with Chronic Wasting Disease.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

3. Implementation of the proposed rules would not require an increase or decrease in future legislative appropriations to the commission;

4. The proposed rules would not require an increase or decrease in fees paid to the commission;

5. The proposed rules would not create a new regulation;

6. The proposed rules would expand existing rules and would not otherwise limit or repeal an existing regulation;

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

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

COST TO REGULATED PERSONS

The commission determined that for each year of the first five years in which the proposed rules are in effect, the proposed rules do not impose a direct cost on regulated persons, a state agency, a special district, or a local government within the state. Therefore, it is not necessary to repeal or amend any other existing rule.

REQUEST FOR COMMENT

Comments regarding the proposed rules may be submitted to Amanda Bernhard, Texas Animal Health Commission, 2105 Kramer Lane, Austin, Texas 78758, by fax to (512) 719-0719, or by email to comments@tahc.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendments to Chapter 51 of the Texas Administrative Code are proposed pursuant to Chapter 161 of the Texas Agriculture Code.

Pursuant to Texas Agriculture Code §161.041, titled "Disease Control", the commission shall protect all livestock, exotic livestock, domestic fowl, and exotic fowl from diseases the commission determines require control or eradication. The commission shall adopt and periodically update rules listing the diseases that require control or eradication by the commission.

Pursuant to Texas Agriculture Code §161.046, titled "Rules", the commission is authorized to adopt rules as necessary for the administration and enforcement of this chapter.

Pursuant to Texas Agriculture Code §161.054, titled "Regulation of Movement of Animals; Exception", the commission may by rule regulation the movement of animals, and may restrict the intrastate movement of animals even though the movement of the animals is unrestricted in interstate or international commerce. The commission may require testing, vaccination, or another epidemiologically sound procedure before or after animals are moved.

Pursuant to Texas Agriculture Code §161.0545, titled "Movement of Animal Products", the commission may adopt rules that require the certification of persons who transport or dispose of inedible animal products, including carcasses, body parts, and waste material. The commission by rule may provide terms and conditions for the issuance, renewal, and revocation of a certification.

Pursuant to Texas Agriculture Code §161.061, titled "Establishment", the commission may establish a quarantine against all or the portion of a state, territory, or country in which a disease listed in rules adopted under Section 161.041 exists.

Pursuant to Texas Agriculture Code §161.081, titled "Importation of Animals", the commission by rule may regulate the movement of livestock, exotic livestock, domestic animals, domestic fowl, or exotic fowl into this state from another state, territory, or country. The commission by rule may provide for the issuance and form of health certificates and entry permits.

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

§51.5.Movement of Quarantined Animals.

(a) Animals under a Texas Animal Health Commission [TAHC] quarantine notice. A person shall not move [They are restricted from moving] an animal [out] from a quarantined [Quarantined] area unless the movement is authorized by a commission representative [TAHC].

(b) Animals entering Texas from quarantined herds, flocks, or areas.

(1) An animal [Animals, poultry, or birds] originating in a state or area under quarantine as a result of action taken during a meeting of the commission shall not be moved into Texas except as specified in the quarantine notice.

(2) An animal [Animals, poultry, or birds] affected with or recently exposed to infectious, contagious, or communicable diseases [disease] and not in an area or state under the commission's quarantine or that originate in quarantined herds or flocks shall not be moved into Texas unless:

(A) the animal is [they are] consigned to slaughter or a quarantined feedlot and [are] accompanied by a VS Form 1-27 permit issued by an accredited veterinarian or regularly employed veterinarians or inspectors of the state of origin or of the United States Department of Agriculture, Animal and Plant Health Inspection Service, Veterinary Services and upon written permission by the Executive Director for each consignment; or

(B) upon written permission by the Executive Director [executive director] of the commission for each consignment.

(c) Executive Director determination. If the Executive Director determines or is informed that a disease or agent of disease transmission listed in §45.3(a) - (c) of this title (relating to the Reportable and Actionable Disease List) [, listed in §161.061 of Texas Agriculture Code,] exists in another state, territory, or country, and deems [believes that] it [is] necessary to protect livestock in this state, the Executive Director [executive director] may establish a quarantine against all or the portion of the state, territory, or country in which the disease exists. Any quarantine [Quarantine] issued by the Executive Director will be acted on by the Commission at the next appropriate meeting.

§51.10.Cervidae.

(a) Chronic Wasting Disease (CWD). If either the commission [Commission] or the Texas Parks and Wildlife Department issues a quarantine or a prohibition on CWD susceptible species entering the state, that quarantine or prohibition supersedes these rules for the quarantined species. This includes white-tailed deer (Odocoileus virginianus), mule deer (Odocoileus hemionus), black-tailed deer (Odocoileus hemionus columbianus), North American elk or wapiti (Cervus canadensis [Canadensis]), red deer (Cervus elaphus), Sika deer (Cervus nippon [Nippon]), moose (Alces alces), reindeer and caribou ( Rangifer tarandus), and any associated subspecies and hybrids or other cervid species determined to be susceptible to CWD, which means an animal that has had a [diagnosis of] CWD diagnosis confirmed by [means of] an official test conducted by an approved [a] laboratory [approved by USDA/APHIS] shall obtain an entry permit from the commission [Commission] prior to entering Texas. All mule deer and white-tailed deer are also required to obtain an entry permit from the Texas Parks and Wildlife Department in order to enter the state. All requests for entry must be [made] in writing and accompanied with the information necessary to support import qualifications of the animal(s). The entry request must [This should] be received by the commission [TAHC] at least ten working days prior to the proposed entry date. Application processing may [The processing of the application can] be expedited by assuring that all of the necessary documentation has been provided and that the necessary staff is available for review. The application must be accompanied by the owner's statement stating that to his/her knowledge the animal (or donor animals) to be imported have never come in contact with equipment or resided on a premises [premise] where CWD has been [was ever] diagnosed.

(b) Requirements for entry. The applicant must identify the herd of origin and the herd of destination on both the permit application and the Certificate of Veterinary Inspection [certificate of veterinary inspection]. The cervid(s) to be imported into this state[,] shall be identified to their herd of origin by a minimum of two official [official/approved] unique identifiers to include, but not limited to, a legible tattoo, USDA approved eartag, breed registration, RFID device or other commission-approved [state approved] permanent identification method [methods]. If a microchip is used for identification, the owner shall provide the necessary reader. The shipment shall be accompanied by a Certificate of Veterinary Inspection [certificate of veterinary inspection] completed by an accredited veterinarian. Additionally, the applicant must provide documentation showing [that ] the animal(s) originate from a herd that has achieved Certified status [successfully participated] in an [a complete] Approved State CWD Herd Certification Program [herd certification program that is] in compliance with the interstate movement requirements of the May 2019 USDA CWD Herd Certification [July 2012, USDA edition of "Chronic Wasting Disease] Program Standards["] and 9 CFR [the Code of Federal Regulations, Title 9,] Parts 55 and 81[,] for a minimum of five years and is more than 25 miles from a location where CWD has been confirmed or as otherwise epidemiologically determined by the Executive Director.

(c) (No change.)

§51.16.Enforcement and Penalties.

(a) A person who violates a rule or order under this chapter is subject to administrative penalties, criminal penalties, sanctions, and civil remedies as authorized by Chapter 161, Texas Agriculture Code.

(b) An administrative penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

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 October 25, 2021.

TRD-202104293

Myra Sines

Chief of Staff

Texas Animal Health Commission

Earliest possible date of adoption: December 5, 2021

For further information, please call: (512) 719-0724