78R8221 AKH-D
By: Hardcastle H.B. No. 2012
Substitute the following for H.B. No. 2012:
By: Brown of Kaufman C.S.H.B. No. 2012
A BILL TO BE ENTITLED
AN ACT
relating to the creation of an organic standards registration and
certification program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 18.001, Agriculture Code, is amended to
read as follows:
Sec. 18.001. DEFINITIONS. In this subchapter:
(1) "Agricultural product" ["Distributor"] means any
raw or processed agricultural commodity or product, including any
commodity or product derived from livestock, that is marketed in
the United States for human or livestock consumption [a person
engaged in the business of selling food or fiber for resale,
including a wholesaler, broker, packer, repacker, shipper, or
shipping agent].
(2) "National organic program" ["Logo"] means the
program established under the Organic Foods Production Act of 1990
(7 U.S.C. Section 6501 et seq.), as amended, or any similar federal
program [the department's appropriately registered "Texas
Department of Agriculture Certified Organic" or "Texas Department
of Agriculture Organic Certification Pending--Transitional"
logotype].
(3) "Organic" ["Organic certifying agent"] means
labeled, advertised, marketed, or otherwise represented as an
agricultural product produced in accordance with the Organic Foods
Production Act of 1990 (7 U.S.C. Section 6501 et seq.), as amended,
and [an organic certification organization registered under] this
subchapter.
[(4) "Organic farming" means a system of ecological
soil management that relies on building humus levels through crop
rotations, recycling organic wastes, and applying balanced mineral
amendments and that uses, when necessary, mechanical, botanical, or
biological controls with minimum adverse effects on health and
environment.
[(5) "Organic food" includes only food that is
produced under a system of organic farming and processed, packaged,
transported, and stored to retain maximum nutritional value without
the use of artificial preservatives, coloring or other additives,
ionizing radiation, or synthetic pesticides.
[(6) "Organic fiber" includes only fiber that is
produced under a system of organic farming and processed, packaged,
transported, and stored to maintain segregation and prevention of
contamination from other fiber or synthetic pesticides, prohibited
defoliants, or desiccants.
[(7) "Processor" means a person who is engaged in the
business of manufacturing raw agricultural commodities into food,
feed, or fiber products.
[(8) "Producer" means a person who is engaged in the
business of growing or producing food, feed, or fiber.
[(9) "Retailer" means a person, other than a
restaurant operator, who is engaged in the business of selling food
at retail, other than at a restaurant, to its ultimate consumer.]
SECTION 2. Section 18.002, Agriculture Code, is amended to
read as follows:
Sec. 18.002. ORGANIC STANDARDS PROGRAM [RULES]. (a) The
department by rule may create and administer a program for the
administration and enforcement of standards related to organic
agricultural products, including certification of persons who
produce, process, distribute, or handle organic agricultural
products, and may regulate the use of "organic" and related terms
[adopt rules necessary for the enforcement and administration of
this subchapter].
(b) Any program created by the department under Subsection
(a) must be consistent with the provisions of the national organic
program.
(c) To the extent consistent with federal law, the
department by rule may adopt standards related to organic
agricultural products other than the standards established by the
national organic program.
(d) The department may enter into an agreement with the
United States Department of Agriculture to act as an organic
certifying agent or to provide primary enforcement of state and
national standards relating to organic agricultural products.
(e) In regulating organic agricultural products under this
subchapter, the department may require certification,
registration, or other documentation the department considers
necessary:
(1) to ensure the integrity of the state and national
organic programs;
(2) to ensure the marketability of organic
agricultural products produced in this state; and
(3) to meet the authentication or verification
requirements of the federal government, another state, or a foreign
country relating to organic agricultural products.
SECTION 3. Section 18.003, Agriculture Code, is amended to
read as follows:
Sec. 18.003. ORGANIC CERTIFICATION. (a) The department
may [shall] certify each person who produces, processes,
distributes, or handles an organic agricultural product
[producers, processors, distributors, and retailers of organic
food and fiber] in this state. [The department by rule shall adopt
minimum standards for certification under this subchapter.]
(b) A person may apply for any required [an organic]
certification under this subchapter [, or a renewal of an organic
certification,] by submitting the following, as prescribed by
department rule:
(1) an application for certification;
(2) a plan for production, processing, distribution,
or handling of organic agricultural products; and
(3) a [an annual] fee [prescribed by the department].
(c) The department by rule may require a person certified
under this subchapter to submit an annual report of that person's
production, processing, distribution, or handling of organic
agricultural products, along with an annual reporting fee. [An
organic certification shall be for a period prescribed by the
department. A person who fails to submit a renewal fee on or before
the expiration date of the certification must pay, in addition to
the renewal fee, the late fee provided by Section 12.024 of this
code.]
(d) The department may by written notice require that a
person certified under this subchapter submit any additional
report, including copies of records, the department considers
necessary to investigate or monitor production, processing,
distribution, or handling of organic agricultural products [A
person who is certified under this subchapter may use department
logos as provided by department rule].
(e) A certificate issued under this subchapter remains in
effect until surrendered, suspended, or revoked in accordance with
procedures established by department rule and Section 18.0075.
SECTION 4. The heading to Section 18.004, Agriculture Code,
is amended to read as follows:
Sec. 18.004. [ORGANIC CERTIFYING AGENT] REGISTRATION
PROGRAM.
SECTION 5. Section 18.004(a), Agriculture Code, is amended
to read as follows:
[(a)] The department by rule may establish a voluntary or
mandatory registration program for persons who produce, process,
distribute, handle, or advertise organic products in this state and
for persons who certify any producers, processors, distributors, or
handlers located in this state [register a person as an organic
certifying agent. On receipt of a certificate of registration
under this section, an organic certifying agent may certify for the
department a producer, processor, distributor, or retailer of
organic food or fiber under this subchapter].
SECTION 6. Sections 18.006(a), (b), and (c), Agriculture
Code, are amended to read as follows:
(a) The department by rule may require a fee for each:
(1) application for certification;
(2) application for registration or registration
renewal;
(3) annual report required by the department;
(4) certificate issued by the department; and
(5) document required by the federal government,
another state, or a foreign country that is issued by the department
under this subchapter [shall charge an annual fee, as provided by
department rule, for each applicant certified as a producer,
distributor, or retailer and a fee, as provided by department rule,
for each applicant certified as a processor of organic food or fiber
produced in this state].
(b) The department may establish:
(1) a different fee amount for each fee under
Subsection (a); and
(2) a fee schedule for each fee under Subsection (a)
[shall charge an annual fee, as provided by department rule, for
each applicant certified as a distributor or retailer and a fee, as
provided by department rule, for each applicant certified as a
processor of organic food or fiber produced outside of this state].
(c) The department may establish a late fee in an amount
that is not more than twice the amount of the fee authorized under
Subsection (a) and required to be paid by a date established by rule
or by written notice provided to the person who owes the fee [shall
charge an annual fee, as provided by department rule, for a person
who obtains a certificate of registration as an organic certifying
agent].
SECTION 7. Section 18.007, Agriculture Code, is amended to
read as follows:
Sec. 18.007. DENIAL, SUSPENSION, OR REVOCATION OF ORGANIC
CERTIFICATION OR [ORGANIC CERTIFYING AGENT] REGISTRATION. The
department may deny, suspend, or revoke a certification or [of a
producer, processor, distributor, or retailer or a certificate of]
registration issued [to an organic certifying agent] under this
subchapter if the person to whom the certification or registration
was issued:
(1) makes a false representation material to a matter
governed by this subchapter; or
(2) violates or refuses to comply with this subchapter
or a rule or instruction of the department under this subchapter.
SECTION 8. Subchapter A, Chapter 18, Agriculture Code, is
amended by adding Section 18.0075 to read as follows:
Sec. 18.0075. ADMINISTRATIVE PROCEDURES. (a) To the
extent consistent with the requirements of the national organic
program, the department by rule shall adopt administrative
procedures relating to assessment of administrative penalties and
other sanctions for violations of this subchapter. Chapter 2001,
Government Code, does not apply to department rules adopted under
this subchapter to the extent that Chapter 2001, Government Code,
conflicts with the requirements of the national organic program.
(b) The department shall provide a person with written
notice of the department's intent to assess the person with an
administrative penalty or other sanction. If the department
requires a written response to the notice, the department shall
allow the person not less than 10 days after the date the person
receives the notice to provide the department with the written
response. A written response may contain an admission of a
violation of this subchapter or rule adopted under this subchapter,
as applicable, and an agreement to assessment of the applicable
administrative penalty or sanction.
(c) The department's administrative procedures may provide
for a default judgment without a hearing for failure to submit to
the department a written response under Subsection (b) that
contains a request for a hearing and a general or specific denial
that the department's action is warranted by the facts or law.
(d) A default judgment may be entered under this section by
order of the commissioner. The order entering a default judgment is
final on the day the commissioner issues the order.
(e) A default judgment may be appealed for review de novo to
a Travis County district court not later than the first anniversary
of the date the order is issued under Subsection (d).
(f) On appeal, the court may only consider the issues of
whether the appellant received proper notice as required by
Subsection (b) and whether the department received a proper
response under Subsection (b). The appellant has the burden of
proof to establish, by a preponderance of the evidence, that proper
notice was not received by the appellant or that a proper response
under Subsection (b) was received by the department. If the
appellant prevails, the default judgment shall be vacated and the
case shall be remanded to the department for an administrative
hearing on the substantive issues raised by the department's
notice.
(g) The State Office of Administrative Hearings shall
conduct any hearing required by a rule of the department adopted
under this subchapter.
(h) In the absence of administrative procedures adopted by
the department under this section, the procedures under Chapter 12
and under Chapter 2001, Government Code, apply to the assessment of
administrative penalties or license sanctions, except that the
procedures may, on motion of a party or on the administrative law
judge's own motion, be modified by the judge as necessary to comply
with standards and procedures under the national organic program.
SECTION 9. Section 18.009(a), Agriculture Code, is amended
to read as follows:
(a) A person who violates this subchapter or a rule adopted
under this subchapter is liable to the state for a civil penalty not
to exceed $10,000 [$500] for each violation. Each day a violation
continues is a separate violation for purposes of a civil penalty
assessment.
SECTION 10. Sections 18.010(a) and (b), Agriculture Code,
are amended to read as follows:
(a) If an organic agricultural product [food or fiber] is
being sold or distributed in violation of this subchapter or a rule
adopted under this subchapter, the department may issue a written
order to stop the sale or distribution of the product [that item of
food or fiber] by a person in control of the product [item]. The
product [person] named in the order may not be sold or distributed
while [sell the item] labeled, marketed, advertised, or otherwise
represented as "organic" until:
(1) permitted by a court under Subsection (b) [of this
section]; or
(2) the department determines that the sale or
distribution of the product [item] is in compliance with this
subchapter and rules adopted under this subchapter.
(b) A [The] person in control of the product named in the
order may bring suit in a court in the county where the product
[item] is located. After a hearing, the court may permit the
product [item] to be sold if the court finds the product [item] is
not being sold in violation of this subchapter or a department rule
issued under this subchapter.
SECTION 11. Subchapter A, Chapter 18, Agriculture Code, is
amended by adding Section 18.011 to read as follows:
Sec. 18.011. PUBLIC INFORMATION. Information created,
collected, assembled, or maintained by the department under this
subchapter is public information, except that the department by
rule may exempt specified information from disclosure but only to
the extent necessary to comply with the national organic program.
SECTION 12. Sections 18.004(b), (c), (d), and (e) and
Section 18.005, Agriculture Code, are repealed.
SECTION 13. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2003.