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.