HBA-NMO S.B. 1685 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1685 By: Bernsen Public Health 5/2/1999 Engrossed BACKGROUND AND PURPOSE Current law requires the Texas Department of Health's (TDH) shellfish program 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. S.B. 1685 amends the regulation of the oyster industry and the collection of fees and penalties therein. This bill sets forth an oyster program that allows TDH to close and reopen bays to oyster harvesting when an epidemiological link of a human illness to a naturally occurring marine organism has been established by a case control study. This bill also creates the Texas Oyster Council, composed of industry stakeholders; and the Texas Oyster Program and the Oyster Advisory Committee, both administered by the Texas Department of Agriculture for the promotion of the industry. This bill further authorizes the marine biology department at the Texas A&M University at Galveston to investigate the causes and effects of marine organisms associated with human illnesses that can be transmitted through the consumption of oysters. 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 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) Requires a certified shellfish dealer to pay a fee or penalty imposed by Subsection (a) or (b), rather than this section, not later than the 20th, rather than 30th, day of the month following the month in which the barrel of oysters was handled. Provides that a dealer who fails to pay the fee or penalty in full within the prescribed period is liable for the amount of the fee or penalty, in addition to a penalty of 10 percent of the amount of the fee or penalty due. Authorizes TDH, on certification from the comptroller that a certified shellfish dealer has refused to pay a fee, penalty, or additional penalty on written demand, to revoke the shellfish certificate of the certified shellfish dealer. (d) Requires the comptroller, rather than TDH, to collect fees and penalties under this section. 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 that two percent of the fees collected under this section be deposited in the state treasury for the use of the comptroller in the administration and enforcement of this section. Requires that the remainder of the fees and penalties collected under this section be deposited to the credit of the oyster sales account in the general revenue fund to be allocated between certain activities. (f) Provides that Subtitles A ( General Provisions) and B (Property Tax Administration), Tax Code, apply 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 closing or opening the area. (c) Requires TDH to follow standards that are at least as stringent as the guidelines adopted by the National Shellfish Sanitation Program (NSSP). Requires that TDH's approach 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 TDH 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 (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 from among its members. Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL. Requires the council to perform certain actions. 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, with exception. 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 Texas Department of Agriculture (TDA) to promote and advertise the Texas oyster industry through market research, public relations, and public information, education, and training. (b) Authorizes TDA, following the advice of the Oyster Advisory Committee to use money appropriated to TDA to implement this chapter and for administrative purposes. Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) Requires the Commissioner of Agriculture to appoint an Oyster Advisory Committee (advisory 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) Prohibits the members of the advisory committee from serving 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 a presiding officer from among its members and adopt its own by-laws. Requires that the by-laws stipulate that five members constitute a quorum. (e) Sets forth staggered 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. Amends Subchapter C, Chapter 87, Education Code, by adding Section 87.207, Education Code, as follows: Sec. 87.207. 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 and other concerns that may affect the availability of oysters for harvest. Requires the investigation to consider certain natural conditions and other factors. Requires the marine biology department to investigate and provide information about organisms that may be associated with human illness that can be transmitted through the consumption of oysters. Provides that the investigation must consider certain factors. SECTION 6. Sets forth additional requirements of the commissioner of agriculture in making the initial appointments to the Oyster Advisory Committee under Section 47.002, Agriculture Code. SECTION 7. Emergency clause. Effective date: upon passage.