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.