76R13093 CMR-D
By Zbranek, Gray, Eiland, Crabb, et al. H.B. No. 1971
Substitute the following for H.B. No. 1971:
By Gray C.S.H.B. No. 1971
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation and promotion of the oyster industry in
1-3 this state.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter A, Chapter 431, Health and Safety
1-6 Code, is amended by adding Section 431.006 to read as follows:
1-7 Sec. 431.006. COMPLIANCE WITH OTHER LAW; MOLLUSCAN
1-8 SHELLFISH. A person who is subject to this chapter and who handles
1-9 molluscan shellfish, as that term is defined by Section 436.002,
1-10 shall comply with Section 436.105.
1-11 SECTION 2. Section 436.103, Health and Safety Code, is
1-12 amended to read as follows:
1-13 Sec. 436.103. FEE ON OYSTER SALES; PENALTIES. (a) The
1-14 first [A] certified shellfish dealer who handles, stores, packs,
1-15 labels, unloads at dockside, or holds oysters taken from the water
1-16 of this state shall pay the state [department] a fee of $1 for each
1-17 barrel of oysters processed by the certified shellfish dealer.
1-18 (b) For purposes of assessing the fee required by this
1-19 section, three 100-pound containers of oysters is the equivalent of
1-20 one barrel of oysters. A certified shellfish dealer may not pack
1-21 oysters in containers that, when packed, exceed 110 pounds in
1-22 weight. A dealer who violates this subsection is liable for a
1-23 penalty of $5 for each container that exceeds 110 pounds.
1-24 (c) [(b)] A certified shellfish dealer shall pay a fee or
2-1 penalty imposed by Subsection (a) or (b) [this section] not later
2-2 than the 20th [30th] day of the month following the month in which
2-3 the barrel of oysters was handled. A [certified shellfish] dealer
2-4 who fails to pay the fee or penalty in full within the prescribed
2-5 period is liable for the amount of the fee or penalty and an
2-6 additional [a] penalty of 10 percent of the amount of the fee or
2-7 penalty due. On certification by the comptroller that a fee is
2-8 past due, the [The] department may suspend, until the fee, penalty,
2-9 or additional penalty is paid, the shellfish certificate of a
2-10 certified shellfish dealer who fails to timely pay the fee,
2-11 penalty, or additional penalty in full. The department, on
2-12 certification from the comptroller that a certified shellfish
2-13 dealer has refused to pay a fee, penalty, or additional penalty on
2-14 written demand, may revoke the shellfish certificate of a certified
2-15 shellfish dealer who refuses to pay a fee, penalty, or additional
2-16 penalty [on written demand of the department].
2-17 (d) [(c)] The comptroller [department] shall collect
2-18 [deposit] fees and penalties [collected] under this section and may
2-19 adopt rules, forms, and procedures for submission of fees and
2-20 penalties under this section. Each month the comptroller shall
2-21 report to the department the fees and penalties that are submitted
2-22 to the comptroller.
2-23 (e) Before any other disposition of the fees and penalties
2-24 collected under this section is made, two percent of the amount of
2-25 the fees and penalties shall be deposited in the state treasury for
2-26 appropriation for the use of the comptroller in the administration
2-27 and enforcement of this section. The remainder of the fees and
3-1 penalties collected under this section shall be deposited to the
3-2 credit of the oyster sales account in the general revenue fund to
3-3 be allocated each year [quarter to the department] for
3-4 oyster-related activities, including:
3-5 (1) collecting bay water and shellfish meat samples;
3-6 (2) contracting for [water] sample analysis for
3-7 classification and opening or closing of oyster harvesting areas;
3-8 [(2) the study of organisms in oysters that are
3-9 harmful to consumers of oysters;]
3-10 (3) marking the boundaries of areas that are
3-11 designated open or closed under this subchapter [the education of
3-12 the public on health issues relating to oyster consumption];
3-13 (4) studying oyster diseases and other concerns
3-14 affecting the availability of oysters for harvest;
3-15 (5) studying organisms that may be associated with
3-16 human illness and that can be transmitted through the consumption
3-17 of oysters;
3-18 (6) promotion and advertising of the Texas oyster
3-19 industry by the Texas Department of Agriculture, including
3-20 information, education, and training to consumers on safe and
3-21 proper handling of oysters; and
3-22 (7) other oyster-related activities authorized or
3-23 required by this chapter [the sanitary handling of oysters at the
3-24 wholesale, retail, and consumer level; and]
3-25 [(5) the optional additional marking of the boundaries
3-26 of areas declared closed by the director].
3-27 (f) Subtitles A and B, Title 2, Tax Code, apply to the
4-1 comptroller's administration, collection, and enforcement of this
4-2 section to the same extent as if the fee imposed under this section
4-3 were a tax imposed under Title 2, Tax Code.
4-4 [(d) The department shall adopt rules, forms, and procedures
4-5 to obtain from a certified shellfish dealer required to pay fees
4-6 under this section information on the:]
4-7 [(1) location of the oysters harvested;]
4-8 [(2) identity of the harvesting boat;]
4-9 [(3) identity of the captain and the number of crew of
4-10 the harvesting boat; and]
4-11 [(4) identity of the receiving certified shellfish
4-12 dealer.]
4-13 SECTION 3. Subchapter H, Chapter 436, Health and Safety
4-14 Code, is amended by adding Sections 436.104-436.108 to read as
4-15 follows:
4-16 Sec. 436.104. OYSTER PROGRAM. (a) The department shall
4-17 conduct sanitary surveys, bay water and shellfish meat sampling,
4-18 and any other activities that are necessary to classify the bays
4-19 from which oysters are harvested from private leases or public
4-20 reefs and the director shall continue to designate those areas as
4-21 open areas as much as possible while protecting public health.
4-22 (b) The department shall, subject to reasonable and prudent
4-23 safety concerns, conduct sampling activities at the earliest
4-24 possible time following the designation as a closed area of an area
4-25 from which oysters are harvested from private leases or public
4-26 reefs:
4-27 (1) if a question exists about the closure, to confirm
5-1 the need for the closure; or
5-2 (2) if there is reason to believe that the sampling
5-3 will result in opening the area.
5-4 (c) In implementing the oyster program, the department shall
5-5 follow standards that are at least as stringent as the guidelines
5-6 adopted by the National Shellfish Sanitation Program. The
5-7 department's approach shall be consistent with the purpose and
5-8 intent of the National Shellfish Sanitation Program and the federal
5-9 Food and Drug Administration policy statements regarding the
5-10 consumption of raw molluscan shellfish.
5-11 Sec. 436.105. TEMPERATURE REQUIREMENTS. Molluscan shellfish
5-12 shall be refrigerated in air temperatures at or below 45 degrees
5-13 Fahrenheit at all times except during transfer from one storage
5-14 area or transportation vehicle to another. Except for an immediate
5-15 transfer, molluscan shellfish may not remain unrefrigerated during
5-16 transfer from one storage area or transportation vehicle to
5-17 another.
5-18 Sec. 436.106. TEMPERATURE ABUSE. If temperature abuse of
5-19 oysters associated with possible Vibrio parahaemolyticus illnesses
5-20 is identified at any point in the market chain from harvest to
5-21 consumer, the department may not designate a harvest area as a
5-22 closed area unless the temperature abuse does not appear to be the
5-23 possible cause of the illness.
5-24 Sec. 436.107. TEXAS OYSTER COUNCIL. (a) The Texas Oyster
5-25 Council is created.
5-26 (b) The council is composed of:
5-27 (1) two members appointed by the board from a list of
6-1 nominations submitted by the Texas Oyster Growers and Dealers
6-2 association;
6-3 (2) two members appointed by the board from a list of
6-4 oyster dealers who have held a shellfish certificate in this state
6-5 for not less than six months of each of the three years preceding
6-6 the nomination and who are certified at the time of appointment;
6-7 (3) one representative appointed by the chairman of
6-8 the Interstate Shellfish Sanitation Conference; and
6-9 (4) two consumer members appointed by the speaker of
6-10 the house of representatives.
6-11 (c) Members of the Texas Oyster Council serve one-year terms
6-12 expiring August 31 of each year and may be reappointed at the end
6-13 of a term.
6-14 (d) A member of the Texas Oyster Council may not receive
6-15 compensation for service on the council and may not be reimbursed
6-16 for expenses incurred by the member while conducting the business
6-17 of the council.
6-18 (e) A person is not eligible for appointment as a consumer
6-19 member of the Texas Oyster Council if the person or the person's
6-20 spouse:
6-21 (1) is a harvester, processor, or wholesaler regulated
6-22 under this chapter;
6-23 (2) is employed by a harvester, processor, or
6-24 wholesaler regulated under this chapter;
6-25 (3) is a retailer of molluscan shellfish; or
6-26 (4) is employed by a retailer of molluscan shellfish.
6-27 (f) The Texas Oyster Council shall elect a presiding officer
7-1 from among its members.
7-2 Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL.
7-3 (a) The Texas Oyster Council shall:
7-4 (1) advise the board on the criteria used by the
7-5 director under Section 436.101 to designate growing areas as open
7-6 or closed areas;
7-7 (2) advise the board on the development of standards
7-8 and procedures relating to the licensing of molluscan shellfish
7-9 processors under this chapter;
7-10 (3) advise the board on the content of the rules
7-11 adopted to implement the provisions of this chapter relating to
7-12 molluscan shellfish;
7-13 (4) perform any other functions requested by the board
7-14 in implementing and administering the provisions of this chapter
7-15 relating to molluscan shellfish; and
7-16 (5) review information brought before the council
7-17 relating to molluscan shellfish.
7-18 (b) The Texas Oyster Council is entitled to:
7-19 (1) obtain information that is furnished to the
7-20 department or developed by the department as part of an
7-21 investigation of a food-borne illness that is suspected of being
7-22 related to molluscan shellfish, including:
7-23 (A) location and handling practices where
7-24 suspect food may have been served;
7-25 (B) product labeling and records;
7-26 (C) distribution agent, methods, and handling
7-27 practices;
8-1 (D) sources of product;
8-2 (E) sample collection and laboratory analysis;
8-3 and
8-4 (F) any other nonmedical information that may
8-5 aid in determining causes or routes of transmission of food-borne
8-6 illness or suspected food-borne illness; and
8-7 (2) review the information provided under Subdivision
8-8 (1) and report to the department on any matter of concern.
8-9 (c) The Texas Oyster Council may establish procedures for:
8-10 (1) meetings of the council;
8-11 (2) submission, consideration, and resolution of
8-12 issues before the council; and
8-13 (3) reporting relating to the council's activities.
8-14 (d) A member of the Texas Oyster Council who receives
8-15 information under Subsection (b) from confidential communications
8-16 or records, as identified by the department, may not disclose the
8-17 information outside of the council or the department. The
8-18 department, by providing to the council public information that is
8-19 confidential or otherwise excepted from public disclosure under
8-20 law, does not waive or affect the confidentiality of the
8-21 information for the purposes of state or federal law or waive the
8-22 right to assert exceptions to required disclosure of the
8-23 information.
8-24 (e) The Texas Oyster Council is subject to Chapter 551,
8-25 Government Code. The Texas Oyster Council is not required to
8-26 conduct an open meeting to deliberate confidential communications
8-27 and records provided under this section relating to the
9-1 investigation of a food-borne illness that is suspected of being
9-2 related to molluscan shellfish.
9-3 SECTION 4. Title 3, Agriculture Code, is amended by adding
9-4 Chapter 47 to read as follows:
9-5 CHAPTER 47. TEXAS OYSTER PROGRAM
9-6 Sec. 47.001. DUTIES. (a) The department may:
9-7 (1) promote and advertise the Texas oyster industry;
9-8 (2) use current market research to develop an oyster
9-9 marketing plan to increase consumption of Texas oysters;
9-10 (3) conduct a public relations campaign to create a
9-11 responsible and accurate image of the Texas oyster industry; and
9-12 (4) provide information, education, or training to
9-13 consumers on safe and proper handling of oysters.
9-14 (b) The department, in consultation with the advisory
9-15 committee appointed under Section 47.002, may use money
9-16 appropriated to the department to implement this chapter for
9-17 administrative expenses related to this chapter.
9-18 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
9-19 commissioner shall appoint an Oyster Advisory Committee to provide
9-20 guidance and direction on the programs and activities established
9-21 under this chapter and expenditures of the money appropriated for
9-22 this chapter.
9-23 (b) A member of the advisory committee may not receive
9-24 compensation for service on the committee and may not be reimbursed
9-25 for expenses incurred while conducting the business of the advisory
9-26 committee.
9-27 (c) The advisory committee is composed of:
10-1 (1) six members appointed by the commissioner from a
10-2 list of nominations submitted individually by molluscan shellfish
10-3 dealers who have held a shellfish certificate issued under Chapter
10-4 436, Health and Safety Code, for not less than 12 months of each of
10-5 the three years preceding the nomination;
10-6 (2) two members appointed by the commissioner from a
10-7 list of nominations submitted individually by molluscan shellfish
10-8 dealers who have held a shellfish certificate issued under Chapter
10-9 436, Health and Safety Code, for not less than six months of each
10-10 of the three years preceding the nomination and who may not submit
10-11 a nomination under Subdivision (1); and
10-12 (3) one public member who represents consumer
10-13 interests appointed by the commissioner.
10-14 (d) The advisory committee shall meet and elect a presiding
10-15 officer from among its members and shall adopt bylaws for the
10-16 conduct of its activities. The bylaws must provide that five
10-17 members constitute a quorum sufficient to conduct meetings and
10-18 business of the advisory committee.
10-19 (e) Advisory committee members serve staggered three-year
10-20 terms, with the terms of three members expiring August 31 of each
10-21 year. A member of the committee may be reappointed.
10-22 SECTION 5. Subchapter C, Chapter 87, Education Code, is
10-23 amended by adding Section 87.207 to read as follows:
10-24 Sec. 87.207. MOLLUSCAN SHELLFISH PROGRAMS. (a) The marine
10-25 biology department of Texas A&M University at Galveston may:
10-26 (1) support the expansion and production of oysters
10-27 from private oyster leases during the months of May through October
11-1 of each year; and
11-2 (2) study the possible impacts of conditions observed
11-3 on public harvest outside that period.
11-4 (b) The marine biology department may investigate and
11-5 provide information about oyster diseases and other concerns that
11-6 may affect the availability of oysters for harvest. The
11-7 investigation shall consider the effects of natural environmental
11-8 conditions, including salinity, temperature, turbidity, and other
11-9 natural environmental conditions, and shall also consider factors
11-10 that may not be part of the natural environment, including chemical
11-11 contamination, freshwater inflow alterations, and ballast water
11-12 discharges.
11-13 (c) The marine biology department may investigate and
11-14 provide information about organisms that may be associated with
11-15 human illness that can be transmitted through the consumption of
11-16 oysters, particularly Vibrio parahaemolyticus and Vibrio
11-17 vulnificus. The investigation must consider factors such as
11-18 natural occurrence, contamination, and the effects of time,
11-19 temperature, and handling practices on the organisms.
11-20 SECTION 6. In making the initial appointments of advisory
11-21 committee members under Section 47.002, Agriculture Code, as added
11-22 by this Act, the commissioner of agriculture shall appoint:
11-23 (1) two members from the list submitted under Section
11-24 47.002(c)(1), Agriculture Code, as added by this Act, and one
11-25 member from the list submitted under Section 47.002(c)(2),
11-26 Agriculture Code, as added by this Act, to serve a term expiring
11-27 August 31, 2000;
12-1 (2) two members from the list submitted under Section
12-2 47.002(c)(1), Agriculture Code, as added by this Act, and one
12-3 member from the list submitted under Section 47.002(c)(2),
12-4 Agriculture Code, as added by this Act, to serve a term expiring
12-5 August 31, 2001; and
12-6 (3) two members from the list submitted under Section
12-7 47.002(c)(1), Agriculture Code, as added by this Act, and the
12-8 public member appointed under Section 47.002(c)(3), Agriculture
12-9 Code, as added by this Act, to serve a term expiring August 31,
12-10 2002.
12-11 SECTION 7. The importance of this legislation and the
12-12 crowded condition of the calendars in both houses create an
12-13 emergency and an imperative public necessity that the
12-14 constitutional rule requiring bills to be read on three several
12-15 days in each house be suspended, and this rule is hereby suspended,
12-16 and that this Act take effect and be in force from and after its
12-17 passage, and it is so enacted.