HBA-RBT C.S.H.B. 1971 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1971 By: Zbranek Public Health 4/26/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE In 1998, this state's oyster industry closed down during the summer months due to an outbreak of gastroenteritis which was linked to the consumption of raw Galveston Bay oysters. The shutdown lasted for approximately 5 months. The Texas Department of Health's (TDH) shellfish program is required by law to conform to the U.S. Food and Drug Administration's National Shellfish Sanitation Program which sets guidelines for the sanitary control of the shellfish industry. The federal program is designed to address events triggered by pollution, but not naturally occurring marine bacteria which are unrelated to pollution events. C.S.H.B. 1971 puts a program in place which will allow for the closing and reopening of bays to oyster harvesting when an epidemiological link of an illness to a naturally occurring marine organism has been established by a case control study. This bill requires the bays to be opened unless the illnesses are confirmed as being caused by the same virulent strain of vibrio parahaemolyticus and prohibits TDH from closing any harvest areas with possible vibrio parahaemolyticus illnesses if temperature abuse is identified at any point between harvest and consumer unless the temperature abuse does not appear to be the possible cause of illness. This bill directs TDH to follow specified current guidelines until the formal adoption of guidelines by the Food and Drug Administration. Because there is no available data relating to the presence of vibrio parahaemolyticus in oysters in the Gulf Coast, this bill proposes a research project to be conducted by Texas A&M University at Galveston. In addition, this bill addresses confidentiality concerns and directs the Texas Department of Agriculture to promote, advertise, and market the Texas oyster industry. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the comptroller of public accounts (comptroller) in SECTION 2 (Section 436.103, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter A, Chapter 431, Health and Safety Code, by adding Section 431.006, as follows: Sec. 431.006. COMPLIANCE WITH OTHER LAW; MOLLUSCAN SHELLFISH. Requires a person who is subject to this chapter and who handles molluscan shellfish to comply with Section 436.105. SECTION 2. Amends Section 436.103, Health and Safety Code, as follows: Sec. 436.103. FEE ON OYSTER SALES; PENALTIES. (a) Requires the first, rather than a, certified shellfish dealer who stores, packs, labels, unloads at dockside, or holds, in addition to handles, oysters taken from the water of this state to pay to the state, rather than the Texas Department of Health (TDH) a $1 fee for each barrel of oysters processed by the certified shellfish dealer. (b) Provides that three 100-pound containers of oysters is the equivalent of one barrel of oysters, for the purposes of assessing the fee required by this section. Prohibits a certified shellfish dealer from packing oysters in containers that, when packed, exceed 110 pounds in weight. Provides that a dealer who violates this subsection is liable for a penalty of $5 for each container that exceeds 110 pounds. (c) Authorizes TDH to suspend and revoke the shellfish certificate upon certification by the comptroller that a fee or penalty is past due or that the dealer refuses to pay a fee or penalty, on written demand of the comptroller, rather than TDH. Deletes existing text to make conforming changes. (d) Requires fees and penalties collected under this section to be submitted to the comptroller. Authorizes the comptroller to adopt rules, forms, and procedures for submission of fees under this section. Requires the comptroller to report to TDH monthly the fees and penalties submitted. (e) Requires two percent of the fees collected under this section to be deposited in the state treasury for the use of the comptroller in the administration and enforcement of this section. Requires the remainder of the fees and penalties collected under this section to be deposited to the credit of the oyster sales account in the general revenue fund to be allocated between specified activities. (f) Provides that the provisions for Subtitle A ( General Provisions) and B (Property Tax Administration), Tax Code are applicable to the comptroller's administration, collection, and enforcement of this section to the same extent as if this were a tax imposed under Title 2 (State Taxation), Tax Code. Deletes existing text to make conforming changes. SECTION 3. Amends Subchapter H, Chapter 436, Health and Safety Code, by adding Sections 436.104-436.108, as follows: Sec. 436.104. OYSTER PROGRAM. (a) Requires TDH to conduct sanitary surveys, bay water and shellfish meat sampling, and any other activities that are necessary to classify the bays where oysters are harvested from private leases and public reefs and requires the director to continue to designate those areas as open areas as much as possible while protecting public health. (b) Requires TDH to conduct sampling activities at the earliest possible time following closures of areas where oysters are harvested from private leases or public reefs to confirm the need for the closure if any questions exist about the closure. (c) Requires the department to follow standards that are at least as stringent as the guidelines adopted by the National Shellfish Sanitation Program (NSSP). Requires the department's approach to be consistent with the purpose and intent of the NSSP and the federal Food and Drug Administration policy statements regarding the consumption of raw molluscan shellfish. Sec. 436.105. TEMPERATURE REQUIREMENTS. Requires molluscan shellfish to be refrigerated in air temperatures at or below 45 degrees Fahrenheit at all times except during transfer from one storage area or transportation vehicle to another. Prohibits molluscan shellfish remaining unrefrigerated during transfer from one storage area or transportation vehicle to another except for an immediate transfer. Sec. 436.106. TEMPERATURE ABUSE. Prohibits the department from designating a harvest area as a closed area if temperature abuse of oysters associated with possible vibrio parahaemolyticus illnesses is identified at any point in the market chain from harvest to consumer unless the temperature abuse does not appear to be the possible cause of the illness. Sec. 436.107. TEXAS OYSTER COUNCIL. Creates the Texas Oyster Council. Sets forth the composition of the council. Sets forth the terms of the council members. Prohibits a council member from receiving compensation or reimbursement for service on the council. Lists persons ineligible for appointment on the council. Requires the council to elect a presiding officer. Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL. Sets forth actions that the council is required to perform. Entitles the council to obtain certain information and review the information. Authorizes the council to establish procedures for meetings, issues before the council, and reporting. Prohibits disclosure by council members of confidential communications. Provides that the council is subject to the open meetings law. SECTION 4. Amends Title 3, Agriculture Code, by adding Chapter 47, as follows: CHAPTER 47. TEXAS OYSTER PROGRAM. Sec. 47.001. DUTIES. (a) Authorizes the Department of Agriculture to promote and advertise the Texas oyster industry through market research, public relations, and public information, education, and training. (b) Authorizes the Department of Agriculture, following the advice of the Oyster Advisory Committee to use money appropriated to the department for administrative purposes. Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) Requires the Commissioner of Agriculture to appoint an Oyster Advisory Committee (committee) to provide guidance and direction on the programs and activities established under this subchapter and expenditures of the funds appropriated for this subchapter. (b) Requires the members of the advisory committee to serve without compensation or reimbursement of expenses. (c) Sets forth the composition of the advisory committee and the procedure for the selection of members. (d) Requires the advisory committee to elect presiding officer and develop its own bylaws under which it shall operate. Requires the by-laws to stipulate that five members constitute a quorum. (e) Sets forth the terms for members of the advisory committee. Authorizes a member to continue to serve on the advisory committee after the conclusion of the term, if the member is reappointed. SECTION 5. MOLLUSCAN SHELLFISH PROGRAMS. Authorizes the marine biology department of Texas A&M University at Galveston to support the expansion and production of oysters from private oyster leases during the months of May through October of each year and study the possible impacts of conditions observed on public harvest outside that period. Authorizes the marine biology department to investigate and provide information about oyster diseases, organisms, and other concerns that may affect human health. Sets forth factors that the marine biology department is required to consider. SECTION 6. Sets forth additional requirements for the commissioner of agriculture in making the initial appointments under Section 47.002, Agriculture Code. SECTION 7. Emergency clause. Effective date: upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute differs from the original by deleting proposed SECTIONS 1, 2, and 3. SECTION 1 consisted of several definitions, SECTION 2 related to confidentiality, and SECTION 3 added a definition and amended Section 431.005, Health and Safety Code, to require molluscan shellfish to be regulated under Chapter 436. The substitute differs from the original by adding new SECTION 1. Please see the Section-bySection Analysis portion of this document for a more complete analysis. The substitute differs from the original by redesignating SECTION 4 of the original as SECTION 2 of the substitute, as modified to conform to Legislative Council format. The substitute differs from the original by redesignating SECTIONS 5 the original as SECTION 3 of the substitute and by changing the title for proposed Section 436.104, Health and Safety Code, from "Oyster Lease Program" to "Oyster Program." Subsection 436.104(f) Health and Safety Code, proposed in the original, is redesignated as Sections 436.105 and 436.106 in the substitute. Proposed Section 436.116, Health and Safety Code, found in SECTION 6 of the original is redesignated as Sections 436.107-436.108 in SECTION 3 of the substitute. The substitute provides a new SECTION 6, regarding appointments to the Oyster Advisory Committee under proposed Section 47.002, Agriculture Code. The substitute differs from the original by redesignating SECTION 7 of the original as SECTION 4 of the substitute. The substitute differs from the original by redesignating SECTION 8 of the original as SECTION 5 of the substitute. SECTION 9 (Emergency Clause) of the original is redesignated to SECTION 7 of the substitute.