Part 1.
TEXAS DEPARTMENT OF AGRICULTURE
Chapter 3.
BOLL WEEVIL ERADICATION PROGRAM
Subchapter F. GENERAL PROCEDURES
4 TAC §§3.201 - 3.203
The Texas Department of Agriculture (the Department) adopts
new §§3.201-3.203, concerning administrative rules for the boll
weevil eradication program with changes to the proposal published in the December
3, 1999, issue of the
Texas Register
(24 TexReg
10636). The new sections are adopted to provide procedures and requirements
for approval by the Commissioner of Agriculture of documents and activities
required to be submitted and/or reported to the Commissioner under the Texas
Agriculture Code, Chapter 74, Subchapter D. In addition, the new sections
provide requirements and procedures for implementation of a cost-share program
established by the 76th Legislature, 1999 by the enactment of Senate Bill
448, now codified as the Texas Agriculture Code, Chapter 74, Subchapter E.
The new sections are also adopted to formalize and make more efficient the
approval and reporting requirements of the Texas Agriculture Code, Chapter
74, Subchapter D, thereby strengthening the supervisory rule of the department
in the implementation of the boll weevil eradication program, and to assure
the financial support for boll weevil eradication programs in Texas through
the use of cost-share funds.
Changes were made throughout the sections for purposes of clarification,
some based on comments received on the proposal. Section 3.201 had been changed
at paragraphs (1) through (5) to clarify that approvals must be obtained from
the commissioner in writing. Also, §3.201 at (2)(B)(i)(I), language has
been added to further clarify what agreements are required to be approved
by the commissioner, at (2)(B)(ii) language has been added to clarify that
bid announcements for purchases and/or leases over the amount of $10,000 and
bids for the financing of such purchases and/or leases must be approved prior
to distribution of the request for bids, at (2)(B)(iii), the word "short"
has been deleted to allow more flexibility in providing a justification statement
for purchases, and language has been added to clarify that a justification
is required for both purchase and lease agreements, at (3), language has been
added to clarify that the foundation's operating budget includes individual
zone budgets as well as the foundation's main administrative offices operating
budget, a typographical error has been corrected at subparagraph (3)(C), the
word "funds", which was inadvertently omitted in the proposal, has been added
to the end of (3)(D)(iii), and the word "within" has been replaced by the
word "between" in the first sentence of subparagraph (3)(E). In §3.202,
a new paragraph (b)(1) has been added to more specifically itemize what, at
a minimum, should be included in the annual report, and other paragraphs have
been renumbered accordingly. Also in §3.202(b), the word "preceding"
has been inserted before the word "fiscal" for purposes of clarification,
based on a comment received. In §3.203, paragraph (b)(2) has been changed,
based on a comment, to correct the Agriculture Code reference from "Chapter
4" to "Chapter 74", paragraph (c)(2)(D) has been changed to add the words
"the funds" between the words "how" and "will" for purposes of clarification,
based on a comment received, and a comma has been added after the word "disbursed"
in paragraph (e)(1), also for purposes of clarification. Also at §3.203(e)(4),
the word "applicable" has been added to clarify that the foundation shall
comply with only state requirements regarding the use of state money that
are applicable to the foundation, which is a state agency only for limited
purposes.
Comments were received on the proposal from attorneys for the Texas Boll
Weevil Eradication Foundation, on behalf of the foundation. In addition to
the comments received which resulted in changes to the proposal as previously
noted, a comment was received requesting that proposed §3.203, concerning
cost-share funding, be changed to clarify that a zone that held a referendum
and election in the past, but in which a program was subsequently discontinued
or eliminated by legislative action would not qualify as an active zone. The
department disagrees that a clarification is necessary. The intent of SB 448
was to provide cost-share funding in zones in which boll weevil eradication
activities are active. If a zone has been discontinued by grower referendum,
or eliminated by legislative action, a referendum on the establishment of
a program and assessment referendum would need to be held before the zone
could undertake eradication activities. Moreover, there may be a situation
where an inactive zone may become active again or otherwise eligible for cost-share
funds based on legislative action or action by the commissioner.
The new sections are adopted under the Texas Agriculture Code
(the Code), §74.120, which provides the Texas Department of Agriculture
(department) with the authority to adopt rules for implementation of the Code,
Chapter 74, Subchapter D, and the Code, §74.152, which authorize the
department to adopt rules to implement a cost-sharing program as part of the
program to eradicate the boll weevil and pink bollworm under Chapter 74, Subchapter
D.
§3.201.Approval by the Commissioner of Agriculture.
The Texas Boll Weevil Eradication Foundation (foundation) is required
to obtain approval from the commissioner of agriculture as follows.
(1)
Approval must be obtained in writing from the commissioner
for the borrowing of money to fund operations of the foundation.
(A)
An approval request for the borrowing of money must first
be approved by the board in open meeting.
(B)
Once approved by the board, the request for approval to
borrow money must be submitted to the commissioner in writing at least 30
days before the date of the actual borrowing transaction and include:
(i)
name and address of lender;
(ii)
amount to be borrowed;
(iii)
copy of terms of agreement for borrowing and supporting
documentation;
(iv)
a statement of justification for choosing the lender including
other options considered; and
(v)
any other information requested by the commissioner.
(2)
The commissioner must approve in writing
the foundation's policy for the procurement of goods and/or services.
(A)
A general policy must be approved by the commissioner initially
and reviewed annually thereafter.
(B)
The general procurement policy of the foundation shall
include:
(i)
a requirement in regards to purchases of goods or services:
(I)
that all purchase and/or lease agreements over the amount
of $10,000 entered into for the providing of goods and/or services of aerial
applicators, purchases of chemicals, pheromone traps, pheromone, stakes, bar
code devices and purchases or leases of vehicles or other heavy equipment
be approved by the commissioner; and
(II)
that the requirement does not include agreements for routine
or day-to-day operating expenditures such as office supplies, payroll or utilities.
(ii)
provisions for obtaining of competitive bids, including
a requirement that bid announcements (request for bids) for purchases and/or
leases, or financing of such purchases and/or leases, over the amount of $10,000
be approved by the commissioner prior to distribution of the announcement
(request for bids) to prospective bidders; and
(iii)
a requirement that a statement of justification of the
need for the goods or services being purchased and/or leases be provided for
each purchase and/or lease.
(3)
The commissioner must review and approve
the foundation's operating budget, which includes individual zone budgets
as well as the foundation's operating budget for its main administrative offices,
in writing, and no funds may be used to fund programs not approved by the
commissioner. The budget must:
(A)
be approved on an annual basis to correspond with the foundation's
fiscal year;
(B)
be submitted at least 30 days prior to be the end of the
foundation's fiscal year;
(C)
be approved by the foundation board in an open meeting
prior to submission to the commissioner;
(D)
include the following:
(i)
a breakdown of expenses to show the budget as projected
by zone;
(ii)
total projected budget including expenses for goods and
services to be approved by the commissioner; and
(iii)
a description of programs to be implemented using budgeted
funds; and
(E)
Budget revisions are permitted between the approved budget
line items. Prior written approval from the commissioner is required on all
cumulative transfers, for the fiscal year covered by the proposed budget,
of funds among budget line items when the amount transferred exceeds 5% of
the total annual budget.
(4)
The commissioner must approve in writing the
use of a bank depository prior to the deposit of funds by the foundation.
(5)
The commissioner must approve in writing or by signing
cooperative agreements entered into by the foundation for carrying out the
purposes of approved eradication activities:
(A)
with other states;
(B)
with individuals, or a group of persons involved in similar
programs to carry out the purposes of Chapter 74, Subchapter D; and
(C)
with other governmental entities.
§3.202.Reporting Requirements.
(a)
The foundation shall provide the department with a copy
of its annual audit within 30 days of the audit's completion. Included with
the audit shall be any accompanying letters to management from the auditor.
(b)
The foundation shall file with the department an annual
report within 45 days of the end of its preceding fiscal year. The annual
report shall include, at a minimum:
(1)
a balance sheet of assets, liabilities and fund equity;
(2)
an itemization of income/expenditures;
(3)
a statement of eradication activities carried out
in the year covered by the report, by zone;
(4)
information regarding the name and quantity of pesticides
used in the program by zone; and
(5)
copies of any resolutions adopted by the board regarding
the eradication program.
§3.203.Cost-sharing Program.
(a)
Statement of Purpose and Authority. In accordance with
the Texas Agriculture Code, Chapter 74, Subchapter E, the department is authorized
to contract with the entity named under §74.1011 to carry out boll weevil
eradication to obtain boll weevil eradication services for the state of Texas
as part of a cost-sharing program. The Texas Boll Weevil Eradication Foundation,
Inc. (the foundation) has been designated as that entity. This section sets
forth requirements and procedures for the implementation of the cost-sharing
program.
(b)
Zone eligibility.
(1)
The department may spend money under the cost-sharing program
only in a boll weevil eradication zone in which:
(A)
a boll weevil eradication project authorized under the
Code, Chapter 74, Subchapter D is active; or
(B)
boll weevil eradication has been declared complete by the
United States Department of Agriculture or its designee.
(2)
A zone meets the requirement set forth in subparagraph
(1)(A) of this section if a referendum of cotton growers has been held in
the zone in accordance with the Code, Chapter 74, Subchapter D, and both the
establishment of an eradication program and a maximum assessment have been
approved by growers for that zone.
(c)
Request for funding.
(1)
The foundation may request funding under this section by
submission to the department of a proposal to provide boll weevil eradication
services which meets the requirements specified by the department.
(2)
A proposal to provide boll weevil eradication services
shall include:
(A)
a statement that the foundation meets eligibility requirements;
(B)
a statement verifying that the foundation will comply with
the Uniform Grant Management Standards promulgated by the Governor's Office
of Budget and Planning, under the Texas Government Code, Chapter 783 (UGMS);
(C)
verification that funds provided will be used for boll
weevil eradication services in eligible zones; and
(D)
the specific amount of funding requested and how the funds
will be used, broken down by zone, period of time covered, specific category
of expenditure, and nature of activity.
(3)
Additional information may be requested, if needed.
(d)
Disbursement of funds.
(1)
Disbursement of funds will be made after review and acceptance
of the foundation's proposal by the department and execution of a written
contract for services between the department and the foundation.
(2)
Disbursement shall be made only in accordance with
the contract.
(3)
Disbursement of funds may be made in a lump sum or
installments, as set forth in the contract.
(e)
Reporting/Accounting Requirements.
(1)
After funds have been disbursed, the foundation shall provide
a written report of expenditures on a quarterly basis according to the State
of Texas fiscal year, or more often, as requested by the department.
(2)
Quarterly reports shall be submitted to the department
within 30 days after the end of each quarter.
(3)
The foundation shall establish an accounting system
which identifies source of funds for programs, with separate accounting, in
a manner that will enable the department and others to audit funds and verify
source of funds and how they are used, for:
(A)
grower assessments;
(B)
state funds; and
(C)
federal funds.
(4)
The foundation shall comply with all applicable
state requirements regarding use of state funds.
(5)
The department may suspend disbursement of funds to
the foundation, if:
(A)
the department determines, or has reason to believe, that
appropriated funds are not being used for purposes stated in the contract
or the foundation is not complying with the terms of the contract, including
reporting requirements, or these rules;
(B)
the department determines, or has reason to believe, that
the use of the appropriated funds by the foundation is not consistent with
state law; and/or
(C)
the department determines or has reason to believe that
the foundation's use of the appropriated funds is not in the best interest
of the state, cotton growers, or the eradication program.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on February 7, 2000.
TRD-200000929
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: February 27, 2000
Proposal publication date: December 3, 1999
For further information, please call: (512) 463-4075
Subchapter M. SWEET POTATO WEEVIL QUARANTINE
Chapter 19.
QUARANTINES