Texas Animal Health Commission Fees 4 TAC §33.5

The Texas Animal Health Commission (Commission) adopts new §33.5, concerning Herd Status/Certification Fees, with changes to the proposed text as published in the October 7, 2011, issue of the Texas Register (36 TexReg 6592). The section will be republished.

The new section is for the purpose of assessing and collecting fees for services related to the Commission creating, maintaining, and/or validating disease free status programs.

The Commission provides the following herd status programs: 1) Requirements for Certified Brucellosis Free Herd of Cattle (See §35.3 of this title (relating to Brucellosis in Cattle)); 2) Initial Validation and Revalidation of Individual Swine Herd (See §35.48 of this title (relating to Brucellosis in Swine)); 3) Requirements for Certified Brucellosis Free Cervidae Herd (See §35.82 of this title (relating to Brucellosis in Cervidae)); 4) Requirements for Certified Brucellosis Free Herd of Goats (See §35.62 of this title (relating to Brucellosis in Goats)); 5) Herd Status Plans for Cervidae (See §40.3 of this title (relating to Chronic Wasting Disease)); 6) Accredited Herd Plan for Cattle (see §43.2 of this title (relating to Tuberculosis in Cattle and Bison)); 7) Accredited Herd Plan for Goats (See §43.11 of this title (relating to Tuberculosis in Goats)); 8) Herd Status Plans for Cervidae (See §43.22 of this title (relating to Tuberculosis in Cervidae)); 9) Trichomoniasis Herd Certification Program--Breeding Bulls (See §38.8 of this title (relating to Trichomoniasis)); and 10) Pseudorabies (See §55.5 of this title (relating to Pseudorabies in Swine)).

The basic premise of any disease free status or certification program is based on following similar principles: testing on a regular basis, maintaining a closed herd, testing new arrivals as required, and following all other rules and regulations of the program. For new arrivals, status is maintained by only purchasing animals from an accredited/certified free herd or testing the new animals prior to introduction into the herd. The animals must all be officially identified and an inventory maintained for all animals in the herd as directed by the program rules.

The regulations for these programs can describe general requirements for the collection and submission of samples to approved laboratories for testing, recognition of official tests, and the interpretation standards for official tests which are necessary to achieve or maintain "Free Herd" status. Herds which have achieved this status may have distinct advantages in the marketability and the ease or cost of interstate/international movement of animals.

The Commission received eight comments. Texas Farm Bureau (TFB) expressed disappointment that current budget constraints have resorted to the agency needing to assess fees. TFB's current policy prevents it from supporting the agency's fee structure, but indicated a willingness to work with the Commission and Texas Legislature to reinstate adequate funding.

Texas Wildlife Association indicates that while no one likes fees, it is aware our budget is in shortfall and therefore because of the clear legislative direction and need for continued services, as well as outreach to other stakeholders, they support our fees for Herd Disease Free Status.

One comment received wondered why the high cost of $100 would be placed on the ranchers and farmers who have a hard enough time paying for feed for their cattle. Another commenter asked "who came up with such an annual price and why?" Another commenter stated that "I do not think that adding additional fees will improve the program. I would at least be amenable to a per head fee, but flat rates whether you have one cow or a hundred are inherently unfair. If you are going to apply a fee for maintaining a certified free herd, then the fee should be per cow, not per person. I understand that the state has a budget crunch, but this is an unfair rule change, which will disproportionately affect small producers compared with larger cattle operations." Another commenter asked "what about people like me who only have 4 head of cattle? It seems that a sliding scale option would be more fair."

Another commenter stated that the "Texas taxpayers already pay plenty for these services and the commission should instead better manage its funds to cover these costs. Just as with any business, it has to live within its means. If it is unable to do so, it needs to look at what it is spending money on and cut the budget down to a manageable level. Producers (and taxpayers) should not have to bear this additional burden!!! Additionally, this appears to be a program that will create even more of a bureaucracy and add additional unnecessary regulation to an already struggling industry." These certification programs have been around for quite a while and are not new.

Another commenter said "his sole source of income is from the showpig business, and it is how I support myself, my wife, and my 4 month old daughter. You probably know these are very tough times to say the least in production ag."

The Commission's herd certification programs are voluntary. No producer is required to participate in agency certification programs. Charging fees will not improve the program oversight, but is a reality of the fiscal environment that state government is currently operating in. Without charging a fee, the agency may be required to stop providing or reduce certification services as currently offered.

Most producers choose to participate in certification programs because they provide producers enhanced marketing opportunities. When Texas did not have a Free Status in a national disease eradication program, free herd status also allowed a producer to either sell or move interstate without having to do a test prior to movement, thus saving the producer money. Very few producers participate in most of the certification programs and this fee only affects those that choose to participate. Agency staff time and personnel are required to oversee and maintain these voluntary programs, therefore, the agency needs to recover the basic costs in providing these services.

A $100 certification fee was originally chosen because it represented a standard amount which was simpler to achieve while a sliding scale fee is more difficult to manage. Based on the comments, however, the Commission has re-evaluated the equity issue raised and believes that the rule should be amended to use a sliding scale to accommodate smaller herd sizes. The range of prices will be as follows: less than 25 head - $25; for 25-100 head - $50; and for more than 100 head it will be $100. This is a less onerous standard which will be more cost effective for the smaller herd participants. Also, in line with that change, the Commission is adding a fee exception for specific participants in two simultaneous herd certification programs. The Commission has some certificate programs in which a producer has herds in two programs. Specifically for swine, some producers have herds that are participating in both brucellosis and pseudorabies (PRV) programs. Similarly, goat producers may participate in both the brucellosis and Tuberculosis programs. Because the test results are usually evaluated simultaneously by Commission staff and handled in the same timeframe during processing, the Commission will only assess a fee of $25.00 for the issuance of the second certificate, no matter the herd size. As such, the Commission makes these changes in response to the comments submitted. The Commission is also changing subsection (c) to make the requirement easier to understand.

STATUTORY AUTHORITY

The new section is adopted under the following statutory authority as found in Chapter 161 of the Texas Agriculture Code. Under §161.060, "{t}he commission may charge a fee, as provided by commission rule, for an inspection made by the commission". During the 82nd Texas Legislative Session, House Bill 1992 was passed which provides the Commission with broader based fee assessment authority. HB 1992 amends §161.060 which will allow the Commission to set and collect a fee for most services provided, including: 1) inspecting animals or facilities; 2) obtaining samples from animals for disease diagnostic test; 3) testing animals for disease; 4) disease prevention, control/eradication and treatment efforts; 5) services related to the transport of livestock; 6) control and eradication of ticks and other pests; and 7) any other service for which the Commission may incur a cost.

The Commission is also vested by statute, §161.041(a), with the requirement to protect all livestock, domestic animals, and domestic fowl from disease. The Commission is authorized, by §161.041(b), to act to eradicate or control any disease or agent of transmission for any disease that affects livestock. If the Commission determines that a disease listed in §161.041 of this code or an agent of transmission of one of those diseases exists in a place in this state among livestock, or that livestock are exposed to one of those diseases or an agent of transmission of one of those diseases, the Commission shall establish a quarantine on the affected animals or on the affected place. That is found in §161.061. Section 161.112 provides that the Commission may establish rules regarding the tests, immunization, and dipping of animals at livestock markets.

As a control measure, the Commission by rule may regulate the movement of animals. The Commission 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. That authority is under §161.054. A person is presumed to control the animal if the person is the owner or lessee of the pen, pasture, or other place in which the animal is located and has control of that place; or exercises care or control over the animal. That authority is under §161.002.

§33.5.Herd Status/Certification Fees.

(a) The Commission is assessing a fee for the following programs:

(1) Requirements for Certified Brucellosis Free Herd for Cattle (See §35.3 of this title (relating to Brucellosis in Cattle)).

(2) Initial Validation and Revalidation of Individual Swine Herd (See §35.48 of this title (relating to Brucellosis in Swine)).

(3) Requirements for Certified Brucellosis Free Cervidae Herd (See §35.82 of this title (relating to Brucellosis in Cervidae)).

(4) Requirements for Certified Brucellosis Free Herd of Goats (See §35.62 of this title (relating to Brucellosis in Goats)).

(5) CWD Herd Status Plans for Cervidae (See §40.3 of this title (relating to Chronic Wasting Disease)).

(6) Accredited Herd Plan for Cattle (See §43.2 of this title (relating to Tuberculosis in Cattle and Bison)). A herd must meet the standards of the Uniform Methods and Rules (UM&R) as provided in Part IV.

(7) Accredited Herd Plan for Goats (See §43.11 of this title (relating to Tuberculosis in Goats)).

(8) Herd Status Plans for Cervidae (See §43.22 of this title (relating to Tuberculosis in Cervidae)).

(9) Trichomoniasis Herd Certification Program--Breeding Bulls (See §38.8 of this Title (relating to Trichomoniasis)).

(10) Pseudorabies Qualified and Monitored Herd Plans for Swine (See §55.5 of this title (relating to Pseudorabies in Swine)).

(b) The fee is on a sliding scale as follows:

(1) $25.00 for less than 25 head.

(2) $50.00 for 25 to 100 head.

(3) $100 for greater than 100 head.

(4) $25 for a second certificate for herds that participate in both of the following programs:

(A) Swine brucellosis/PRV validation/qualification.

(B) Goat brucellosis/Tuberculosis certification/accreditation.

(c) The fee is due in full prior to issuance of a certificate which provides confirmation of a disease free status for the herd.

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 17, 2012.

TRD-201201014

Gene Snelson

General Counsel

Texas Animal Health Commission

Effective date: March 8, 2012

Proposal publication date: October 7, 2011

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