HBA-RBT H.B. 1971 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1971 By: Zbranek Public Health 3/25/1999 Introduced 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. 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 4 (Section 436.103, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. DEFINITIONS. Defines "Interim Control Plan for Vibrio parahaemolyticus (ICPVp)," "Interstate Shellfish Sanitation Conference (ISSC)," "National Shellfish Sanitation Program (NSSP)." SECTION 2. Amends Section 81.046, Health and Safety Code, by adding Subsection (e), to prohibit reports, records, and information furnished to or collected by a health authority or the Texas Department of Health (TDH) as part of an investigation related to food borne illness from being considered public information. Requires release of the information upon written request to any licensed or certified member of the implicated industry. Authorizes release of the information to protect public health only when a case control study has established an epidemiological link to an implicated food. Redesignates Subsection (e) to (f). SECTION 3. Amends Section 431.002 and 431.005, Health and Safety Code, to define "molluscan shellfish" and require molluscan shellfish to be regulated under the provisions and rules of Chapter 436 (Aquatic Life), Health and Safety Code, at all levels of the market chain from harvest to consumer. SECTION 4. Amends Section 436.103, Texas Health and Safety Code, as follows: Sec. 436.103. OYSTER SALES FEE; PENALTIES. (a) Requires certified shellfish dealers to pay to the state a $1 fee, rather than to TDH. Provides that a barrel of oysters is equivalent to three one hundred pound sacks of oysters. Establishes penalties for dealers who pack oysters in sacks exceeding 110 pounds. (b) 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. (c) Authorizes the comptroller to adopt rules, forms, and procedures for submission of fees under this section. (d) Requires fees and penalties collected under this section to be submitted to the comptroller. Requires the comptroller to report to TDH monthly the fees and penalties submitted. (e) Requires 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 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. SECTION 5. Amends Subchapter H, Health and Safety Code, by adding Section 436.104, as follows: Sec. 436.104. OYSTER LEASE PROGRAM. (a) Requires TDH to conduct the necessary activities to allow production of oysters from private oyster leases during the months of May through October of each year. (b) 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 maintenance of those areas in the open status as much as possible while protecting public health. (c) 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. (d) 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 if there is reason to believe that the sampling will result in opening the areas. (e) Requires TDH to follow the vibrio parahaemolyticus guidelines of NSSP when they are officially incorporated into NSSP. Requires TDH to follow the current ICPVp along with any modifications adopted at subsequent ISSC meetings until the guidelines are officially incorporated. Requires confirmation by a laboratory analysis that the same virulent strain of vibrio parahaemolyticus has caused illnesses before any action is implemented by ICPVp. Requires the opening of any area closed because of illnesses confirmed as being caused by the same virulent strain of vibrio parahaemolyticus when 20 samples of oyster meats collected in a 14 day period from the area, in addition to the ongoing routine vibrio parahaemolyticus research, do not result in the finding of the causative virulent strain of vibrio parahaemolyticus. (f) Requires TDH to implement a monitoring and enforcement program which investigates possible temperature abuse on product from harvesting through retail. Requires TDH to initiate enforcement action against all entities involved in temperature abuse of oysters. 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. (g) Requires the guidelines set forth in Subsection (e) to become effective on the effective date of this Act and remain in effect until more definitive guidelines are provided in the ICPVp or vibrio parahaemolyticus guidelines are officially incorporated into NSSP. SECTION 6. Amends Subchapter I, Chapter 436, Health and Safety Code, by adding Section 436.116, as follows: Sec. 436.116. TEXAS OYSTER COUNCIL. (a) Requires there to be a Texas Oyster Council (council). (b) Requires the council to advise the Texas Board of Health (board) regarding the criteria for opening and closing of oyster harvest areas, the development of standards and procedures relating to the licensing of molluscan shellfish processors, the content of the rules adopted to implement this chapter, and other such matters and functions pertaining to oysters that are brought before the council for consideration, or are requested by the board in implementing this chapter. (c) Requires the council to establish procedures for meetings, submission, consideration, and resolution of issues, and reporting the council's activities to the legislature. (d) Requires the council to adhere to all laws pertaining to public meetings and to post meeting dates and agenda in the Texas Register. (e) Establishes the composition of the council and the procedure for selecting its members. (f) Provides that a person is not eligible for appointment as a public member under certain specified circumstances. (g) Requires the council to meet and elect a chairperson from its members and conduct other meetings as it may deem necessary to deal with matters brought before the council. (h) Prohibits the council from providing compensation or reimbursement of expenses to its members. (i) Provides that members serve one year terms and may be reappointed at the conclusion of their term. (j) Requires the ISSC representative and the Texas A&M Sea Grant representative to be appointed by their respective organization or agency. SECTION 7. Amends Title 3, Agriculture Code, by adding Chapter 47, as follows: CHAPTER 47. TEXAS OYSTER PROGRAM. Sec. 47.001. PROMOTION AND ADVERTISEMENT. (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 a portion of the oyster sales fee funds provided for administrative purposes. Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) Requires the Commissioner of Agriculture to appoint an Oyster 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. Requires the members of the advisory committee to serve without compensation or reimbursement of expenses. (b) Requires the advisory committee to meet and elect a chairperson from its members and conduct other such meetings as it may deem necessary to provide guidance and direction to the Department of Agriculture. (c) Sets forth the composition of the advisory committee and the procedure for the selection of members. (d) Requires the advisory committee to develop its own by-laws 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. (f) Authorizes a member to continue to serve on the advisory committee after the conclusion for the term, if the member is reappointed. SECTION 8. Amends Subchapter C, Chapter 87, Education Code, to authorize Texas A&M University at Galveston, Marine Biology Department, 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 this time period. Sets forth the funds that are to be used, the branch of the University, and authorizes certain studies. SECTION 9. Emergency clause. Effective date: upon passage.