1-1 By: Swinford (Senate Sponsor - Bivins) H.B. No. 2505
1-2 (In the Senate - Received from the House April 28, 1995;
1-3 May 1, 1995, read first time and referred to Committee on Natural
1-4 Resources; May 10, 1995, reported favorably by the following vote:
1-5 Yeas 8, Nays 0; May 10, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to commercial animal feed; providing a penalty.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 141.001, Agriculture Code, is amended to
1-11 read as follows:
1-12 Sec. 141.001. Definitions. In this chapter:
1-13 (1) "Animal" means an animate being that is not human
1-14 and has the power of voluntary action.
1-15 (2) "Board" means the board of regents of The Texas
1-16 A&M University System.
1-17 (3) "Broker" means a person who is employed on a
1-18 commission basis to sell property for another person. The term
1-19 does not include a person who:
1-20 (A) has possession or absolute control over the
1-21 property that is to be sold;
1-22 (B) receives a salary; or
1-23 (C) acts for one party to the exclusion of all
1-24 others <"Brand" means the term, design, or trademark or other
1-25 specific designation under which a commercial feed is distributed
1-26 in this state>.
1-27 (4) "Bulk" means any lot of commercial feed that is
1-28 not in a closed container at the time it passes to the possession
1-29 of the consumer and includes that feed at any stage of
1-30 distribution.
1-31 (5) "Container" means a bag, box, barrel, bottle,
1-32 package, carton, object, apparatus, device, or appliance in which
1-33 commercial feed is packed, stored, or placed for handling,
1-34 transporting, or distributing.
1-35 (6) "Cotton plant by-products" means the residue from
1-36 the ginning of cotton.
1-37 (7) "Customer-formula feed" means a mixture of
1-38 commercial feed or feed material all or part of which is furnished
1-39 by the person who processes, mixes, mills, or otherwise prepares
1-40 the mixture and which is mixed according to the specific
1-41 instructions of the purchaser. The term includes a special formula
1-42 feed or a made-to-order feed.
1-43 (8) "Director" means the director of the Texas
1-44 Agricultural Experiment Station.
1-45 (9) "Distribute" means sell, offer for sale, barter,
1-46 exchange, or otherwise supply.
1-47 (10) "Feed facility" means a site where feed, a
1-48 component of feed, or feed ingredients are mixed, custom blended,
1-49 ground, unground, manufactured, milled, bagged, salvaged, or
1-50 processed.
1-51 (11) "Ingredient" means a constituent material of
1-52 commercial feed.
1-53 (12) <(11)> "Label" means a display of written,
1-54 printed, or graphic matter on or affixed to or wrapped with a
1-55 container or on an invoice or delivery slip.
1-56 (13) "Licensee" means a person who obtains a license
1-57 to operate a feed facility under this chapter.
1-58 (14) <(12)> "Official sample" means a sample of feed
1-59 taken by the service and designated as official by the service.
1-60 (15) "Product" means the name of the commercial feed
1-61 that identifies it as to kind, class, or specific use and includes
1-62 the brand, term, trademark, or other specific designation under
1-63 which commercial feed is distributed in this state.
1-64 (16) <(13)> "Purchaser" means a person who buys or
1-65 otherwise acquires a commercial feed, customer-formula feed, or
1-66 custom-mix or custom-mill service.
1-67 (17) <(14) "Registrant" means a person who registers a
1-68 commercial feed under this chapter.>
2-1 <(15)> "Service" means the Texas Feed and Fertilizer
2-2 Control Service.
2-3 (18) <(16)> "Ton" means a net weight of 2,000 pounds
2-4 avoirdupois or 1,000 kilograms metric.
2-5 (19) <(17)> "Weight" means net weight of a container
2-6 of commercial feed expressed in either the avoirdupois or metric
2-7 system.
2-8 SECTION 2. Section 141.002(c), Agriculture Code, is amended
2-9 to read as follows:
2-10 (c) The following are not commercial feeds subject to this
2-11 chapter:
2-12 (1) unground hay not containing toxins or chemical
2-13 adulterants;
2-14 (2) whole grain or whole seed not containing toxins or
2-15 chemical adulterants;
2-16 (3) unadulterated cotton plant by-products or any
2-17 unadulterated <cottonseed, peanut, or rice> hulls;
2-18 (4) a feed product produced and sold by a farmer;
2-19 (5) a feed mixed and used by a person who contracts
2-20 with the owner of animals to care for and feed the animals;
2-21 (6) an individual mineral substance not mixed with
2-22 another material; <or>
2-23 (7) <(6)> a material furnished by a purchaser for use
2-24 in a customer-formula feed that was produced by the purchaser or
2-25 acquired by the purchaser from a source other than the person whose
2-26 services are engaged in the milling, mixing, or processing of a
2-27 customer-formula feed; or
2-28 (8) a feed or feed ingredient handled by a broker.
2-29 SECTION 3. The heading to Subchapter B, Chapter 141,
2-30 Agriculture Code, is amended to read as follows:
2-31 SUBCHAPTER B. LICENSE <PERMIT AND REGISTRATION>
2-32 SECTION 4. Section 141.021, Agriculture Code, is amended to
2-33 read as follows:
2-34 Sec. 141.021. LICENSE <PERMIT AND REGISTRATION> REQUIRED.
2-35 (a) A person may not manufacture or distribute commercial feed in
2-36 this state without a valid current license issued by the service
2-37 for each feed facility that manufactures or distributes commercial
2-38 feed. A person making only retail sales of commercial feed bearing
2-39 the label of a licensed manufacturer, guarantor, or distributor is
2-40 not required to obtain a license <permit issued by the service, and
2-41 a person may not manufacture or distribute a commercial feed in
2-42 this state, other than a customer-formula feed, unless the person
2-43 first registers the feed with the service>.
2-44 (b) An application for a license <permit or registration>
2-45 shall be submitted on a form prescribed and provided by the service
2-46 and accompanied by a license fee not to exceed $75 for each
2-47 facility, as provided by department rule.
2-48 (c) A licensee or license applicant shall provide the
2-49 service copies of labels and labeling and other information that
2-50 the service by rule requires <Registration is required for each
2-51 distinct mixture, formulation, or type of commercial feed
2-52 manufactured or distributed in this state>.
2-53 (d) A person applying for a license after the 30th day
2-54 following receipt of notice to obtain a license and a licensee
2-55 applying late for a license renewal shall pay a $75 late fee in
2-56 addition to the license fee <is not required to register a
2-57 commercial feed that has been registered by another person>.
2-58 SECTION 5. Section 141.023, Agriculture Code, is amended to
2-59 read as follows:
2-60 Sec. 141.023. TERM OF LICENSE <PERMIT AND REGISTRATION>. A
2-61 license <permit or registration> issued under this chapter is
2-62 permanent unless:
2-63 (1) the service revokes, suspends, annuls, or amends
2-64 the license <permit or registration>;
2-65 (2) the licensee <permittee or registrant> withdraws
2-66 or cancels the license <permit or registration>; <or>
2-67 (3) the licensee's report to the service indicates no
2-68 activity for one year; or
2-69 (4) the service requires a new license <permit or new
2-70 registration>.
3-1 SECTION 6. Section 141.025, Agriculture Code, is amended to
3-2 read as follows:
3-3 Sec. 141.025. REFUSAL OR REVOCATION OF LICENSE <PERMIT>.
3-4 Following notice and a hearing, the service may revoke, suspend,
3-5 annul, or amend an existing license <permit> or may refuse to issue
3-6 a license <permit> if it finds that the licensee <permittee> or
3-7 applicant has:
3-8 (1) been convicted of a crime for which a license
3-9 <permit> may be revoked, suspended, annulled, amended, or refused
3-10 under Article 6252-13c, Revised Statutes;
3-11 (2) refused or after notice failed to comply with this
3-12 chapter and rules adopted under this chapter; or
3-13 (3) used fraudulent or deceptive practices in
3-14 attempting evasion of this chapter or a rule adopted under this
3-15 chapter.
3-16 SECTION 7. Section 141.051(a), Agriculture Code, is amended
3-17 to read as follows:
3-18 (a) Except as provided by Subsection (d) of this section,
3-19 each container of commercial feed distributed in this state, other
3-20 than customer-formula feed, must have a label with the following
3-21 information:
3-22 (1) the name and principal address of the person
3-23 responsible for manufacture and distribution;
3-24 (2) the brand or name under which the feed is to be
3-25 distributed;
3-26 (3) the quantity <net weight> of the feed in the
3-27 container, in either net weight, net volume contents, or net fluid
3-28 content according to rules adopted by the service <with specific
3-29 designation of the weight system used>;
3-30 (4) the guaranteed analysis of nutrients in the feed,
3-31 listing a maximum or minimum quantity determinable by laboratory
3-32 methods of protein, fat, fiber, and other components of commercial
3-33 feed;
3-34 (5) the common or usual name of each ingredient used
3-35 in the feed;
3-36 (6) the name and percentage of any hulls, shells,
3-37 screenings, straw, stalks, corncobs, or other low grade feeding
3-38 materials or fillers in the feed, if any;
3-39 (7) an appropriate warning statement and directions
3-40 for use relating to each medicine, drug, mineral, vitamin,
3-41 antibiotic, or antioxidant in the feed; and
3-42 (8) other information that the service may by rule
3-43 require.
3-44 SECTION 8. Subchapter C, Chapter 141, Agriculture Code, is
3-45 amended by adding Section 141.055 to read as follows:
3-46 Sec. 141.055. REQUEST FOR LABEL REVIEW. (a) The service
3-47 shall:
3-48 (1) by rule adopt procedures that allow a licensee to
3-49 submit a product label to the service for review;
3-50 (2) review each product label submitted by a licensee
3-51 to determine compliance with the labeling requirements of this
3-52 subchapter;
3-53 (3) make a detailed report to the licensee regarding
3-54 changes to the label required for compliance with the service's
3-55 rules; and
3-56 (4) provide the licensee with the advice that the
3-57 service considers necessary to enable the licensee to comply with
3-58 the service's labeling rules.
3-59 (b) The service may not charge a fee for a review, a report,
3-60 or advice under this section.
3-61 SECTION 9. Sections 141.071(b) and (d), Agriculture Code,
3-62 are amended to read as follows:
3-63 (b) Except as otherwise provided by this section, the
3-64 inspection fee is 15 cents per ton of commercial feed. With the
3-65 approval of the board, the director may reduce or increase the
3-66 inspection in increments of 1 cent up to a maximum of 2 cents per
3-67 fiscal year, except that the board and director shall reduce the
3-68 inspection fee by 1 cent increments when the balance of the Texas
3-69 feed control fund exceeds one-half the projected operating expenses
3-70 of the service for the next fiscal year.
4-1 (d) A licensee <registrant> paying an inspection fee under
4-2 Subsection (b) of this section shall pay in advance a minimum
4-3 annual inspection fee of $100 per fiscal year. All advance
4-4 inspection fees collected under this section shall be credited
4-5 towards the first tonnage inspection fee owed by the licensee
4-6 <registrant> accruing in that fiscal year.
4-7 SECTION 10. Section 141.072, Agriculture Code, is amended to
4-8 read as follows:
4-9 Sec. 141.072. Quarterly Tonnage Reporting and Inspection Fee
4-10 Payment. (a) The person responsible for paying the inspection fee
4-11 for a feed facility generating $100 or more during a license year
4-12 in tonnage fees shall file with the service a quarterly sworn
4-13 report either stating that no tonnage of commercial feed was
4-14 distributed during the preceding quarter or setting forth the
4-15 tonnage of all commercial feed that the feed facility <person>
4-16 manufactured or distributed in this state during the preceding
4-17 quarter. Each quarterly tonnage report must be accompanied by
4-18 payment of the inspection fee due based on the tonnage reported for
4-19 that quarter.
4-20 (b) The person responsible for paying the inspection fee for
4-21 a feed facility producing less than $100 a license year in tonnage
4-22 fees shall file with the service an annual sworn report either
4-23 stating that no tonnage of commercial feed was distributed during
4-24 the preceding license year or stating the tonnage of all commercial
4-25 feed the facility manufactured and distributed in this state during
4-26 the preceding license year. Each annual tonnage report must be
4-27 accompanied by payment of the inspection fee due based on the
4-28 tonnage reported for that year.
4-29 (c) A quarterly tonnage report and inspection fee payment is
4-30 due on or before the 31st day following the last day of November,
4-31 February, May, and August for persons reporting quarterly. An
4-32 annual tonnage report and inspection fee payment is due on or
4-33 before the 31st day following the last day of August for persons
4-34 reporting annually.
4-35 (d) <(c)> The service may prescribe and furnish forms as
4-36 necessary under this section.
4-37 SECTION 11. Section 141.073(b), Agriculture Code, is amended
4-38 to read as follows:
4-39 (b) The penalty together with any delinquent inspection
4-40 fee<,> is due before the 61st <41st> day following the last day of
4-41 the quarter. The service shall cancel the license of a licensee
4-42 <registration of a registrant> who fails to pay the penalty and
4-43 delinquent inspection fee within that time period after notice.
4-44 SECTION 12. Sections 141.074(a), (c), and (d), Agriculture
4-45 Code, are amended to read as follows:
4-46 (a) For the purpose of determining the accurate tonnage of
4-47 commercial feed distributed in this state or identify or verify
4-48 <quarterly> tonnage reports, the service may require each licensee
4-49 <registrant> to maintain records or file additional reports.
4-50 (c) Unless otherwise authorized by the service, a licensee
4-51 <registrant> shall preserve and maintain the records under this
4-52 section in usable condition for at least two years. The service
4-53 may require a licensee <registrant> to retain the records for a
4-54 period longer than two years if the service determines it to be in
4-55 the public interest.
4-56 (d) If a licensee <registrant> is located outside this
4-57 state, the licensee <registrant> shall maintain records required
4-58 under this section in this state or pay all costs incurred in the
4-59 auditing of the records at another location. The service shall
4-60 promptly furnish to the licensee <registrant> an itemized statement
4-61 of any costs incurred in an out-of-state audit and the licensee
4-62 <registrant> shall pay the costs before the 31st day following the
4-63 date of the statement.
4-64 SECTION 13. Section 141.075(b), Agriculture Code, is amended
4-65 to read as follows:
4-66 (b) The Texas feed control fund shall be used, with the
4-67 approval and consent of the board, for administering this chapter,
4-68 including paying the cost of:
4-69 (1) equipment and facilities;
4-70 (2) inspection, sampling, and analysis;
5-1 (3) licensing <registration>;
5-2 (4) salaries; and
5-3 (5) publication of bulletins and reports.
5-4 SECTION 14. Section 141.121(c), Agriculture Code, is amended
5-5 to read as follows:
5-6 (c) A stop-sale order expires at the end of the 30th <10th>
5-7 day following the day on which it was affixed unless, prior to that
5-8 time, the service has instituted proceedings under Section 141.122
5-9 of this code to condemn the feed.
5-10 SECTION 15. Sections 141.122(c) and (d), Agriculture Code,
5-11 are amended to read as follows:
5-12 (c) If the court finds that a violation of this chapter may
5-13 be corrected by proper processing or labeling, the court may order
5-14 that the feed be delivered to the licensee <registrant> of the feed
5-15 for processing or labeling under the supervision of the service.
5-16 Before entering that order, the court shall:
5-17 (1) enter the decree;
5-18 (2) require that all costs, fees, and expenses be
5-19 paid; and
5-20 (3) require the licensee <registrant> of the feed to
5-21 post good and sufficient bond conditioned on the proper labeling
5-22 and processing of the feed.
5-23 (d) The licensee <registrant> of the feed shall pay all
5-24 costs incurred by the service in the supervision of labeling or
5-25 processing under Subsection (c) of this section. The court shall
5-26 return the bond to the licensee <registrant> when the service
5-27 notifies the court that the commercial feed is no longer in
5-28 violation of this chapter and that the licensee <registrant> has
5-29 paid the expenses of supervision.
5-30 SECTION 16. Section 141.143, Agriculture Code, is amended to
5-31 read as follows:
5-32 Sec. 141.143. Distribution of Commercial Feed Without
5-33 License <Registration>, Labeling, or Payment of Inspection Fee.
5-34 (a) A person commits an offense if the person distributes,
5-35 conspires to distribute, or causes another person to distribute
5-36 commercial feed:
5-37 (1) in violation of <that is required to be registered
5-38 but is not registered in accordance with> Subchapter B of this
5-39 chapter;
5-40 (2) that is not labeled in accordance with Subchapter
5-41 C of this chapter; or
5-42 (3) for which an inspection fee has not been paid in
5-43 accordance with Subchapter D of this chapter.
5-44 (b) An offense under this section is a Class C misdemeanor
5-45 unless it is shown that the person has previously been convicted of
5-46 an offense under this subchapter, in which event it is a Class B
5-47 misdemeanor.
5-48 SECTION 17. Section 141.148(a), Agriculture Code, is amended
5-49 to read as follows:
5-50 (a) A person commits an offense if the person distributes,
5-51 conspires to distribute, or causes another person to distribute
5-52 commercial feed:
5-53 (1) that is of a composition, quantity, or quality
5-54 that is below or is different from that which it is represented to
5-55 possess by its label;
5-56 (2) that is moldy, sour, heated, or otherwise damaged,
5-57 because of which it is injurious to animals;
5-58 (3) from which an ingredient has been omitted or
5-59 extracted in whole or in part;
5-60 (4) that is inferior or is damaged and the inferiority
5-61 or damage has been concealed;
5-62 (5) to which a substance has been added or with which
5-63 a substance has been mixed or packed so as to deceptively increase
5-64 its bulk or weight, reduce its quality or strength, or make it
5-65 appear better or of greater value than it is;
5-66 (6) that contains or bears a poisonous or deleterious
5-67 substance that may render it injurious to animals under ordinary
5-68 conditions of use;
5-69 (7) that contains a low-grade feeding material or
5-70 filler but is not labeled in accordance with Section 141.054 of
6-1 this code;
6-2 (8) that consists in whole or in part of a diseased,
6-3 filthy, putrid, or decomposed substance, unless the substance has
6-4 been rendered harmless by sterilization or other effective process;
6-5 <or>
6-6 (9) that is otherwise unfit for feeding to animals; or
6-7 (10) that has been intentionally subjected to
6-8 radiation, unless the use of the radiation was in conformity with a
6-9 regulation or exemption in effect under 21 U.S.C. Section 348.
6-10 SECTION 18. Subchapter G, Chapter 141, Agriculture Code, is
6-11 amended by adding Section 141.149 to read as follows:
6-12 Sec. 141.149. RULES; PENALTY. (a) The service shall adopt
6-13 rules that conform to but are not more strict than current good
6-14 manufacturing practices as established under 21 U.S.C. Section 360b
6-15 for the use of drugs in the manufacture, processing, and packaging
6-16 of commercial feed unless the service determines that those
6-17 practices are not appropriate to conditions existing in this state.
6-18 (b) A person commits an offense if the person violates a
6-19 rule adopted under Subsection (a). An offense under this section
6-20 is a Class C misdemeanor unless it is shown that the person has
6-21 previously been convicted of an offense under this subchapter, in
6-22 which event it is a Class B misdemeanor.
6-23 SECTION 19. Sections 141.022, 141.024, and 141.026,
6-24 Agriculture Code, are repealed.
6-25 SECTION 20. This Act takes effect January 1, 1996.
6-26 SECTION 21. The change in law made by this Act to Section
6-27 141.121(c), Agriculture Code, applies to a stop-sale order affixed
6-28 on or after the effective date of this Act. A stop-sale order
6-29 affixed before the effective date of this Act is governed by the
6-30 law as it existed immediately before the effective date of this
6-31 Act, and that law is continued in effect for that purpose.
6-32 SECTION 22. The importance of this legislation and the
6-33 crowded condition of the calendars in both houses create an
6-34 emergency and an imperative public necessity that the
6-35 constitutional rule requiring bills to be read on three several
6-36 days in each house be suspended, and this rule is hereby suspended.
6-37 * * * * *