PAK C.S.S.B. 1355 75(R) BILL ANALYSIS STATE AFFAIRS C.S.S.B. 1355 By: Brown (Maxey) 5-7-97 Committee Report (Substituted) BACKGROUND The Comptroller of Public Accounts Texas Performance Review in its December 1996 report, "Disturbing the Peace," recommended that the Legislature create an interagency task force to study ways to streamline retail food store regulation. The comptroller's report also recommended that the Texas Parks and Wildlife Department and the Texas Department of Health enter into an interagency agreement to consolidate the application and inspection processes for food retailer and fish markets. In addition, the comptroller recommended removing the responsibility for routine egg-quality inspections from the Department of Agriculture to the Department of Health. The current law distributes the responsibility for regulating and licensing retail food stores and fish markets over nine state agencies. There are 17 different types of state licenses and various types of state inspection processes. In the 1996 report, the comptroller also recommended that the inspection and certification of motor fuel pumps and small commercial scales, for example, grocery store scales, should be privatized. PURPOSE As proposed, C.S.S.B. 1355 would effectively place the comptroller's recommendations into law. C.S.H.B. 1355 would create the Interagency Task Force on Texas Retail Food Store Regulation, to study and recommend changes to streamline food store regulation. The bill also calls for TPWD and TDH to enter into a memorandum of agreement concerning regulation and inspection of food and fish markets. There are provisions in the legislation that remove the egg-quality inspection from TDA. The bill would transfer responsibility for testing motor fuels from the Comptroller to the Department of Agriculture and add a requirement for testing fuel ratings. The bill would also allow the Department of Agriculture to license persons for the inspection or testing of weighing and measuring devices and requires privatization of 75 percent of weights and measures inspections by September 1, 2001. RULEMAKING AUTHORITY It is the committee's opinion that this bill grants rulemaking authority to the Department of Agriculture in SECTION 9 (Art. 8614, V.T.C.S., Sections 2, 4, 5(b),and 9) of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 403 of the Government Code by adding Subchapter N as follows: Section 403.321 (a)-(e) creates an interagency committee to coordinate state agency regulation of retail food stores and designates the Comptroller's Office as the lead agency for the task force. Members of the task force are the executive director or a representative of the Department of Agriculture, Department of Commerce, Department of Health, Parks and Wildlife Department, the Comptroller's Office, and Alcoholic Beverage Commission. Task force members would also include representatives of the Texas Retailer's Association, Texas Food Industry Association, Texas Petroleum Marketers and Convenience Stores, a rural local health department, an urban local health department, appointee by the Consumer's Union, rural consumers appointed by the comptroller, and urban consumers appointed by the comptroller. Section 403.321 (f)-(g) requires the Interagency Task Force to study the regulation of retail food stores and report to the Legislature on the committee's study of grocery store regulation. The committee is to consider and make recommendations on streamlining government regulation and coordinating state permitting and inspection activities. Section 403.321 (h) provides that this Section expires on June 1, 1999. SECTION 2. Amends Section 13.002 of the Agriculture Code by amending Subsection (a) and adding Subsection (c) as follows: Section 13.002 (a) makes a conforming change. Section 13.002 (c) transfers from the Department of Agriculture to the State Board of Pharmacy the authority to enforce requirements regarding weights and measures sold, offered for sale, or used for compounding drugs in pharmacies. The authority to enforce and supervise other aspects of weights and measures remains with the Department of Agriculture. SECTION 3. Amends Subchapter H, Chapter 13 of the Agriculture Code by adding Section 13.4041 by requiring the Department of Commerce to cooperate with the Department of Agriculture to disseminate information about business opportunities available in testing the accuracy of weighing and measuring devices and to develop markets for providers of testing services. SECTION 4. Amends Subchapter H, Chapter 13, Section 13.4042 of the Agriculture Code to require that no more than 50 percent of inspections or tests of weighing and measuring devices be performed by employees of the Department of Agriculture by September 1, 1999. This section expires September 1, 2001. SECTION 5. Amends Subchapter H, Chapter 13 of the Agriculture Code by adding Section 13.4043 that requires that no more than 25 percent of inspections or tests of weighing and measuring devices be performed by employees of the Department of Agriculture by September 1, 2001. SECTION 6. Amends Chapter 13 of the Agriculture Code by adding Section 13.4044 as follows: Section 13.4044(a) prohibits employees of the Texas State Board of Pharmacy from performing more than 50 percent of the inspections or test necessary under Section 13.002(c) and provides that this section is effective September 1, 1999. Section 13.4044(b) provides that subsection (a) does not prohibit an agent of the Texas State Board of Pharmacy from performing an inspection or test necessary under Section 13.002(c). Section 13.4044(c) provides that this Section expires September 1, 2001. SECTION 7. Amends Subchapter H, Chapter 13 of the Agriculture Code by adding Section 13.4045 as follows: Section 13.4045(a) prohibits employees of the Texas State Board of Pharmacy from performing more than 50 percent of the inspections or test necessary under Section 13.002(c) and provides that this section is effective September 1, 2001. Section 13.4045(b) provides that subsection (a) does not prohibit an agent of the Texas State Board of Pharmacy from performing an inspection or test necessary under Section 13.002(c). SECTION 8. Amends Subchapter A, Chapter 47 of the Parks and Wildlife Code by adding Section 47.0113 which requires the Parks and Wildlife Commission to enter into a memorandum of agreement with the Department of Health to consolidate the license and permit application process for retail food stores that sell aquatic products. The memorandum must be adopted by the governing bodies of each agency and published in the Texas Register. SECTION 9. Amends Chapter 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article 8614, V.T.C.S.) as follows: Section 1 defines "automotive fuel rating," "dealer," "distributor," "motor fuel" and "supplier." Section 2 transfers responsibility for motor fuels testing from the comptroller to the commissioner of agriculture (commissioner). This section also allows the commissioner to adopt rules about the frequency of testing of motor fuels. Section 3 makes a conforming change. Section 3A prohibits a motor fuel dealer from selling motor fuel if the automotive fuel rating is lower than what is posted on the fuel pump. Section 3B prohibits a distributor of motor fuel from delivering fuel to a motor fuel dealer if the fuel contains an automotive fuel rating that is lower than the distributor is required to make under federal law. Section 4 authorizes the commissioner of agriculture to prescribe rules and provide signs regarding the sale of motor fuel mixtures. Section 5 requires motor fuel dealers, distributors, suppliers, wholesalers and jobbers to maintain records of manifests, bills of sale, bills of lading and other documents, but shortens the amount of time these records must be maintained from four years to one. Section 5A requires motor dealers, distributors and suppliers to maintain records of delivery tickets or letters of certification of automotive fuel ratings for one year. Section 6 adds violations of the fuel rating requirements of the bill to those that are subject to civil action. The section requires the trier of fact to limit an award to no more than three times the actual damages. Section 7 adds violations of the fuel rating requirements of the bill to those that are subject to civil penalties. The bill would set the civil penalties at no less than $200 and no more than $10,000. Section 8 defines offenses of statutes and rules regarding the sales of certain motor fuel mixtures and allows the commissioner of agriculture to request the appropriate prosecuting attorney to prosecute a violation. Section 9 allows the commissioner of agriculture to adopt rules regulating the sale of motor fuels containing ethanol and methanol. This section also allows the comptroller to set fees for testing, inspection, sale of signs or other services as deemed necessary by the commissioner in the administration of this act. Fees collected under this section are to be used only by the comptroller to defray the cost of collecting fees and penalties and by the commissioner of agriculture for the administration and enforcement of this act. These fees are limited to the lesser of the costs of administering and enforcing the fuel testing provisions or $500,000. Section 10 allows the commissioner of agriculture to contract for the enforcement of this act after due notice. Section 11 outlines provisions regarding the duplication and delivery of certain documents to the federal government. Section 12 requires the Department of Commerce to cooperate with the Department of Agriculture to disseminate information about business opportunities available in automotive fuel testing and to develop markets for providers of automotive fuel testing. SECTION 10. Amends Chapter 1033, Acts of the 71st Legislature, Regular Session 1989 (Article 8614, V.T.C.S.) by adding Section 13 as follows: Section 13 requires that no more than 50 percent of tests of automotive fuel rating be performed by employees of the Department of Agriculture by September 1, 1999. This section expires September 1, 2001. SECTION 11. Amends Chapter 1033, Acts of the 71st Legislature, Regular Session 1989 (Article 8614, V.T.C.S.) by adding Section 13A as follows: Section 13A requires that no more than 25 percent of tests of automotive fuel rating be performed by employees of the Department of Agriculture by September 1, 2001. SECTION 12. Amends Section 10.03, Chapter 419, Acts of the 74th Legislature, Regular Session, 1995 as follows: Section 10.03 allows the Department of Agriculture to license persons for the inspection or testing of weighing or measuring devices beginning September 1, 1997. SECTION 13(a). Effective date; September 1, 1997. SECTION 13 (b). Provides that changes made by SECTION 10 of this bill only apply to transactions involving motor fuels occurring on or after September 1, 1999. SECTION 13 (c). Requires that rules adopted by the Comptroller for the administration of the sales of certain fuel mixtures to remain in effect until amended or repealed by the commissioner of agriculture. SECTION 13 (d). Requires appointments of representatives to the Interagency Task Force on Texas Retail Food Store Regulation by December 1, 1997. SECTION 13 (e). Requires the Parks and Wildlife Department and the Department of Health to enter into the memorandum of agreement and assume their responsibilities by January 1, 1999. SECTION 13 (f). Requires the Texas Retail Food Store Regulatory Committee to report to the legislature before January 1, 1999. SECTION 13(g). Makes this Act prospective. SECTION 14. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE In SECTION 1 the substitute adds additional consumer members to the Interagency Task Force created by this act. In SECTION 2 the substitute also adds provisions to privatize the inspections and testing done by the Texas Board of Pharmacy. Finally the substitute removes the original bill's language thereby returning to current law regulating the inspection and testing of eggs.