By Zbranek H.B. No. 1971
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the release of information associated with food borne
1-3 illness, regulation of the distribution of molluscan shellfish,
1-4 collection and use of the Oyster Sales Fee, regulation of the
1-5 harvesting of molluscan shellfish, promotion and advertisement of
1-6 the Texas Oyster Industry, and research regarding oyster diseases
1-7 and organisms associated with oysters which may cause human
1-8 illness.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. DEFINITIONS. For the purposes of this act:
1-11 "Interim Control Plan for Vibrio parahaemolyticus (ICPVp)" means
1-12 the plan adopted by the ISSC to provide guidance to state shellfish
1-13 control authorities when dealing with the naturally occurring
1-14 marine bacterium, Vibrio parahaemolyticus, until such time as
1-15 definitive guidelines are incorporated into the NSSP Guide for the
1-16 Sanitary Control of Molluscan Shellfish. "Interstate Shellfish
1-17 Sanitation Conference (ISSC)" means the voluntary organization of
1-18 state shellfish control agency representatives, in cooperation with
1-19 federal agency representatives, the shellfish industry, and
1-20 academicians and researchers, which provides guidance for sanitary
1-21 control of molluscan shellfish in this country. "National
2-1 Shellfish Sanitation Program (NSSP)" means the cooperative
2-2 state-federal-industry program for sanitary control of molluscan
2-3 shellfish administered by the U.S. Food and Drug Administration
2-4 that is adequate to insure that the shellfish produced in
2-5 accordance with program guidelines will be safe and sanitary.
2-6 SECTION 2. Section 81.046, Health and Safety Code, is
2-7 amended by adding a new subsection (e) to read as follows:
2-8 Sec. 81.046. Confidentiality. (a) Reports, records, and
2-9 information furnished to a health authority or the department that
2-10 relate to cases or suspected cases of diseases or health conditions
2-11 are confidential and may be used only for the purposes of this
2-12 chapter.
2-13 (b) Reports, records, and information relating to cases or
2-14 suspected cases of diseases or health conditions are not public
2-15 information under Chapter 424, Acts of the 63rd Legislature,
2-16 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
2-17 Statutes), and may not be released or made public on subpoena or
2-18 otherwise except as provided by Subsections (c), [and] (d), and
2-19 (e).
2-20 (c) Medical or epidemiological information may be released:
2-21 (1) for statistical purposes if released in a manner that prevents
2-22 the identification of any person; (2) with the consent of each
2-23 person identified in the information; (3) to medical personnel,
2-24 appropriate state agencies, or county and district courts to comply
2-25 with this chapter and related rules relating to the control and
3-1 treatment of communicable diseases and health conditions; (4) to
3-2 appropriate federal agencies, such as the Centers for Disease
3-3 Control of the United States Public Health Service, but the
3-4 information must be limited to the name, address, sex, race, and
3-5 occupation of the patient, the date of disease onset, the probable
3-6 source of infection, and other requested information relating to
3-7 the case or suspected case of a communicable disease or health
3-8 condition; or (5) to medical personnel to the extent necessary in a
3-9 medical emergency to protect the health or life of the person
3-10 identified in the information.
3-11 (d) In a case of sexually transmitted disease involving a
3-12 minor under 13 years of age, information may not be released,
3-13 except that the child's name, age, and address and the name of the
3-14 disease may be released to appropriate agents as required by
3-15 Chapter 261, Family Code. If that information is required in a
3-16 court proceeding involving child abuse, the information shall be
3-17 disclosed in camera.
3-18 (e) Reports, records, and information furnished to or
3-19 collected by a health authority or the department as part of food
3-20 borne illness or suspected food borne illness investigation or
3-21 epidemiological investigations related to food borne illness or
3-22 suspected food borne illness which pertain to the locations and
3-23 handling practices where suspect food may have been served, product
3-24 labeling and records, distribution agents, methods, and handling
3-25 practices, sources of products, sample collection and laboratory
4-1 analysis, and/or any other non-medical information which may aid in
4-2 determining causes and/or routes of transmission of food borne
4-3 illness or suspected food borne illness shall not be considered
4-4 public information under Chapter 424, Acts of the 63rd Legislature,
4-5 Regular Session, 1973 (Article 6252-17-a, Vernon's Texas Civil
4-6 Statutes), but shall be released by the health authority or
4-7 department upon written request to any licensed or certified member
4-8 of the implicated industry. Information related to food borne or
4-9 suspected food borne illness may be released to protect public
4-10 health only when a case control study has established an
4-11 epidemiological link to an implicated food.
4-12 [(e)] (f) A state or public health district officer or
4-13 employee, local health department officer or employee, or health
4-14 authority may not be examined in a civil, criminal, special, or
4-15 other proceeding as to the existence or contents of pertinent
4-16 records of, or reports or information about, a person examined or
4-17 treated for a reportable disease by the public health district,
4-18 local health department, or health authority without that person's
4-19 consent.
4-20 SECTION 3. Sections 431.002 and 431.005, Health and Safety
4-21 Code, are amended as follows:
4-22 Sec. 431.002. DEFINITIONS. Add a new definition, "(24)
4-23 'Molluscan shellfish' means an edible species of oyster, clam, or
4-24 mussel that is shucked, in the shell, fresh, or fresh frozen, in
4-25 whole or in part, as defined by the National Shellfish Sanitation
5-1 Program.", and renumber all subsequent definitions.
5-2 Sec. 431.005. PROVISIONS REGARDING THE SALE OF FOOD, DRUGS,
5-3 DEVICES, OR COSMETICS. The provisions of this chapter regarding
5-4 the selling of food, drugs, devices, or cosmetics, shall be
5-5 considered to include the manufacture, production, processing,
5-6 packaging, exposure, offer, possession, and holding of any such
5-7 article for sale; and the sale, dispensing, and giving of any such
5-8 article, and the supplying or applying of any such articles in the
5-9 conduct of any food, drug, or cosmetic establishment. Molluscan
5-10 shellfish shall be regulated under the provisions and rules of
5-11 Chapter 436 of this code at all levels of the market chain from
5-12 harvest to consumer.
5-13 SECTION 4. Section 436.103, Texas Health and Safety Code, is
5-14 amended to read as follows:
5-15 Sec. 436.103. OYSTER SALES FEE; PENALTIES. (a) A certified
5-16 shellfish dealer who handles oysters taken from the waters of this
5-17 state shall pay the [department] state a fee of $1 for each barrel
5-18 of oysters processed by the certified shellfish dealer. A barrel
5-19 of oysters is equivalent to three one-hundred pound sacks of
5-20 oysters. A dealer who packs oysters in sacks exceeding 110 pounds
5-21 is liable for a penalty of $5.00 per sack of those sacks found
5-22 exceeding 110 pounds. These penalties shall be payable under the
5-23 same terms established in this section for payment of fees.
5-24 (b) A certified shellfish dealer shall pay a fee imposed by
5-25 this section not later than the 20th day of the month following the
6-1 month in which the barrel of oysters was handled. A certified
6-2 dealer who fails to pay the fee in full within the prescribed
6-3 period is liable for a penalty of 10 percent of the amount due.
6-4 The department may suspend, upon certification by the Comptroller
6-5 that a fee or penalty is past due, until the fee or penalty is
6-6 paid, the shellfish certificate of a certified shellfish dealer who
6-7 fails to timely pay the fee or penalty in full. The department,
6-8 upon certification from the Comptroller that a certified dealer has
6-9 refused to pay a fee or penalty on written demand, may revoke the
6-10 Certificate of Compliance of a certified dealer who refuses to pay
6-11 a fee or penalty on written demand of the [department] Comptroller.
6-12 [(c) The department shall deposit fees and penalties
6-13 collected under this section to the credit of the general revenue
6-14 fund to be allocated each quarter to the department for
6-15 oyster-related activities, including:]
6-16 [(1) contracting for water sample analysis for
6-17 classification and opening and closing of oyster harvesting areas;]
6-18 [(2) the study of organisms in oysters that are
6-19 harmful to consumers of oysters;]
6-20 [(3) the education of the public on health issues
6-21 relating to oyster consumption;]
6-22 [(4) the sanitary handling of oysters at the
6-23 wholesale, retail, and consumer level; and]
6-24 [(5) the optional additional marking of the boundaries
6-25 of areas declared closed by the director.]
7-1 [(d) The department shall adopt rules, forms, and procedures
7-2 to obtain from a certified shellfish dealer required to pay fees
7-3 under this section information on the:]
7-4 [(1) location of the oysters harvested;]
7-5 [(2) identity of the harvesting boat;]
7-6 [(3) identity of the captain and the number of crew of
7-7 the harvesting boat; and]
7-8 [(4) identity of the receiving certified shellfish
7-9 dealer.]
7-10 (c) The comptroller may adopt rules, forms, and procedures
7-11 for submission of fees under this section.
7-12 (d) Fees and penalties collected under this section shall be
7-13 submitted to the Comptroller. The Comptroller shall report to the
7-14 department monthly the fees and penalties submitted.
7-15 (e) Before any other allocation of the fees collected under
7-16 this section is made, two percent of such fees shall be deposited
7-17 in the state treasury for the use of the comptroller in the
7-18 administration and enforcement of this section. The remainder of
7-19 the fees and penalties collected under this section shall be
7-20 deposited to the credit of the Oyster Sales account in the general
7-21 revenue fund to be allocated each year for oyster related
7-22 activities including, but not limited to:
7-23 (1) collecting bay water and
7-24 shellfish meat samples;
7-25 (2) contracting for sample analysis for classification
8-1 and opening or closing of oyster harvesting areas;
8-2 (3) marking of the boundaries of classified areas;
8-3 (4) studying oyster diseases and other concerns
8-4 affecting the availability of oysters for harvest;
8-5 (5) studying organisms which may be associated with
8-6 human illness which can be transmitted through the consumption of
8-7 oysters;
8-8 (6) promotion and advertising of the Texas Oyster
8-9 Industry by the Texas Department of Agriculture, including
8-10 information, education, and/or training to wholesalers, retailers,
8-11 and consumers on safe and proper handling of oysters; and
8-12 (7) as otherwise set out in the other provisions of
8-13 this law.
8-14 (f) The provisions of Subtitle A and B, Tax Code, are
8-15 applicable to the comptroller's administration, collection, and
8-16 enforcement of this section to the same extent as if this were a
8-17 tax imposed under Title 2 of the Tax Code.
8-18 SECTION 5. Subchapter H, Health and Safety Code is amended
8-19 by adding a new Section 436.104 as follows:
8-20 Sec. 436.104. OYSTER LEASE PROGRAM. (a) The department
8-21 shall conduct the necessary activities to allow production of
8-22 oysters from private oyster leases during the months of May through
8-23 October of each year.
8-24 (b) The department shall conduct such sanitary surveys, bay
8-25 water and shellfish meat sampling, and any other activities that
9-1 are necessary to classify the bays where oysters are harvested from
9-2 private leases and/or public reefs and shall maintain those areas
9-3 in the open status as much as possible while protecting public
9-4 health.
9-5 (c) The department shall, using reasonable and prudent
9-6 safety concerns, conduct sampling activities at the earliest
9-7 possible time following closures of areas where oysters are
9-8 harvested from private leases or public reefs to confirm the need
9-9 for the closure if any questions exist about the closure.
9-10 (d) The department shall, using reasonable and prudent
9-11 safety concerns, conduct sampling activities at the earliest
9-12 possible time following closures of areas where oysters are
9-13 harvested from private leases or public reefs if there is reason to
9-14 believe that the sampling will result in opening the areas.
9-15 (e) The department shall follow the Vibrio parahaemolyticus
9-16 guidelines of the National Shellfish Sanitation Program when they
9-17 are officially incorporated into the NSSP. Until then, the
9-18 department shall follow the current Interstate Shellfish Sanitation
9-19 Conference Interim Control Plan for Vibrio parahaemolyticus (ICPVp)
9-20 and any modifications that may be adopted at subsequent ISSC
9-21 meetings, with the following stipulations:
9-22 (1) Illnesses used for implementing ICPVp actions
9-23 shall be confirmed by laboratory analysis as being caused by the
9-24 same virulent strain of Vibrio parahaemolyticus before any action
9-25 is implemented.
10-1 (2) If a closure of an area occurs because of
10-2 illnesses confirmed as being caused by the same virulent strain of
10-3 Vibrio parahaemolyticus the area shall be opened when twenty (20)
10-4 samples of oyster meats collected in a fourteen-day period from the
10-5 area in addition to the ongoing routine Vibrio parahaemolyticus
10-6 research do not result in the finding of the causative virulent
10-7 strain of Vibrio parahaemolyticus.
10-8 (f) The department shall implement a monitoring and
10-9 enforcement program which investigates possible temperature abuse
10-10 on product from harvesting through retail.
10-11 (1) If temperature abuse of oysters is identified
10-12 during the monitoring program, the department shall initiate
10-13 enforcement action against all entities involved in the abuse.
10-14 (2) If temperature abuse of oysters associated with
10-15 possible Vibrio parahaemolyticus illnesses is identified at any
10-16 point in the market chain from harvest to consumer, the department
10-17 shall not close any harvest areas unless the temperature abuse does
10-18 not appear to be the possible cause of the illness.
10-19 (g) The guidelines established in (e), (1) and (2) above
10-20 shall become effective on the effective date of this Act and shall
10-21 remain in effect until such time as more definitive guidelines are
10-22 provided in the ICPVp or Vibrio parahaemolyticus guidelines are
10-23 officially incorporated into the NSSP.
10-24 SECTION 6. Subchapter I, Chapter 436, Health and Safety
10-25 Code, is amended by adding Section 436.116 to read as follows:
11-1 Sec. 436.116. TEXAS OYSTER COUNCIL. (a) There shall be a
11-2 Texas Oyster Council.
11-3 (b) The council shall advise the Board regarding the
11-4 following:
11-5 (1) the criteria for opening and closing of oyster
11-6 harvest areas under this chapter;
11-7 (2) the development of standards and procedures
11-8 relating to the licensing of molluscan shellfish processors under
11-9 this chapter;
11-10 (3) the content of the rules adopted to implement this
11-11 chapter;
11-12 (4) other such matters pertaining to oysters that the
11-13 involved agencies or the oyster industry may bring before the
11-14 council for consideration; and
11-15 (5) any other functions requested by the board in
11-16 implementing and administering this chapter.
11-17 (c) The council shall establish procedures for:
11-18 (1) meetings;
11-19 (2) submission, consideration, and resolution of
11-20 issues; and
11-21 (3) reporting the council's activities to the
11-22 legislature.
11-23 (d) The council shall adhere to all laws pertaining to
11-24 public meetings and shall post meeting dates and agenda in the
11-25 Texas Register.
12-1 (e) The council shall be composed of the following members:
12-2 (1) three members appointed by the Board of Health
12-3 from a list of nominations submitted individually by oyster dealers
12-4 who have been certified in Texas for at least twelve months of each
12-5 year of the three years preceding the nomination;
12-6 (2) two members appointed by the Board of Health from
12-7 a list of nominations submitted individually by oyster dealers who
12-8 have been certified in Texas for at least six months of each year
12-9 of the three years preceding the nomination;
12-10 (3) one representative appointed by the Chairman of
12-11 the Interstate Shellfish Sanitation Conference (I.S.S.C.);
12-12 (4) one member from the Texas A & M Sea Grant Program;
12-13 and
12-14 (5) one public member appointed by the governor.
12-15 (f) A person is not eligible for appointment as a public
12-16 member if the person or the person's spouse:
12-17 (1) is a harvester, processor, or wholesaler regulated
12-18 by this chapter;
12-19 (2) is employed by a harvester, processor, or
12-20 wholesaler regulated by this chapter;
12-21 (3) is a retailer of molluscan shellfish; or
12-22 (4) is employed by a retailer of molluscan shellfish.
12-23 (g) The council shall meet and elect a chairperson from its
12-24 members and shall conduct other such meetings as it may deem
12-25 necessary to deal with matters brought before the council.
13-1 (h) The council shall not provide compensation or
13-2 reimbursement of expenses to its members.
13-3 (i) Members will serve for a period of one year and may be
13-4 reappointed at the conclusion of their term.
13-5 (j) The Interstate Shellfish Sanitation Conference
13-6 representative and the Texas A&M Sea Grant representative shall be
13-7 appointed by their respective organization or agency.
13-8 SECTION 7. Title 3 of the Agriculture Code is amended by
13-9 adding Chapter 47 to read as follows:
13-10 Chapter 47. TEXAS OYSTER PROGRAM.
13-11 Sec. 47.001 PROMOTION AND ADVERTISEMENT (a) The department
13-12 may:
13-13 (1) promote and advertise the Texas Oyster Industry
13-14 including, but not limited to:
13-15 (A) use current market research to develop an
13-16 oyster marketing plan to increase consumption of Texas oysters;
13-17 (B) conduct a public relations campaign to
13-18 create a responsible and accurate image of the Texas Oyster
13-19 Industry; and
13-20 (C) provide information, education, and/or
13-21 training to wholesalers, retailers, and consumers on safe and
13-22 proper handling of oysters.
13-23 (b) The department, following guidance of the Oyster
13-24 Advisory Committee established in Section 47.002, may use a portion
13-25 of the Oyster Sales Fee funds provided for administrative purposes.
14-1 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
14-2 commissioner shall appoint an Oyster Advisory Committee to provide
14-3 guidance and direction on the programs and activities established
14-4 under this subchapter and expenditures of the funds appropriated
14-5 for this subchapter. Members of the advisory committee shall serve
14-6 without compensation or reimbursement of expenses.
14-7 (b) The advisory committee shall meet and elect a
14-8 chairperson from its members and shall conduct other such meeting
14-9 as it may deem necessary to provide guidance and direction to the
14-10 department.
14-11 (c) The advisory committee shall be composed of the
14-12 following nine members:
14-13 (1) six members appointed by the commissioner from a
14-14 list of nominations submitted individually by oyster dealers who
14-15 have been certified in Texas for a least twelve months of each year
14-16 of the three years preceding the nomination;
14-17 (2) two members appointed by the commissioner from a
14-18 list of nominations submitted individually by oyster dealers who
14-19 have been certified in Texas for at least six months of each year
14-20 of the three years preceding the nomination; and
14-21 (3) one member appointed by the commissioner
14-22 representing consumer interests.
14-23 (d) The advisory committee shall develop its own by-laws
14-24 under which it shall operate. These by-laws shall stipulate that
14-25 five members shall constitute a quorum sufficient to conduct
15-1 meetings and business of the advisory committee.
15-2 (e) An advisory committee member shall serve for a
15-3 three-year term with the terms of three members expiring August 31
15-4 of each year. For the first appointment upon adoption of this act,
15-5 the commissioner shall appoint two members from the list submitted
15-6 under (c) (1) and one member from the list submitted under (c) (2)
15-7 or the consumer representative to serve for periods of one year,
15-8 two years, and three years to establish the rotation.
15-9 (f) A person may continue to serve on the advisory committee
15-10 at the conclusion of his/her term if reappointed.
15-11 SECTION 8. Subchapter C, Chapter 87, Education Code, is
15-12 amended as follows:
15-13 SUBCHAPTER C. TEXAS A & M UNIVERSITY AT GALVESTON.
15-14 Sec. 87.201. Texas A & M University at Galveston; Role and
15-15 Mission. (a) Texas A&M University at Galveston is a special
15-16 purpose institution of higher education for undergraduate
15-17 instruction in marine and maritime studies in science, engineering,
15-18 and business and for research and public service related to the
15-19 general field of marine resources. The institution is under the
15-20 management and control of the board of regents of The Texas A&M
15-21 University System, with degrees offered under the name and
15-22 authority of Texas A&M University at College Station. The board of
15-23 regents of The Texas A&M University System shall have the authority
15-24 to designate Texas A&M University at Galveston as a branch of Texas
15-25 A&M University; however, such designation, if made, shall not
16-1 change the role and mission of Texas A&M University at Galveston as
16-2 specified in this section.
16-3 (b) Texas A&M University at Galveston shall be a research
16-4 institute supporting the marine sciences and oceanography programs
16-5 at Texas A&M University and The University of Texas at Austin.
16-6 Research endeavors benefitting the academic strength of Texas A&M
16-7 University and The University of Texas at Austin or the economic
16-8 strength of the State of Texas shall be conducted, with emphasis on
16-9 establishing and maintaining an internationally recognized research
16-10 institute to be named the Texas Institute of Oceanography. The
16-11 Texas Institute of Oceanography may also contract with other
16-12 institutions of higher education to provide research and other
16-13 related services. Texas A&M University at College Station and The
16-14 University of Texas at Austin are authorized to offer upper-level
16-15 and graduate courses in marine sciences and oceanography at the
16-16 Texas Institute of Oceanography that are supportive to their marine
16-17 sciences and oceanography academic programs. Funding for research
16-18 should be from private sources, competitively acquired sources, and
16-19 appropriated public funding.
16-20 (c) Within the established programs, and using funds and
16-21 grants provided in other specific legislation and/or obtained from
16-22 other sources, the Texas A&M University at Galveston, Marine
16-23 Biology Department, may support the expansion and production of
16-24 oysters from private oyster leases during the months of May through
16-25 October of each year and shall study the possible impacts of
17-1 conditions observed on public harvest outside this time period,
17-2 including but not limited to:
17-3 (1) the department may conduct studies to investigate
17-4 and provide information about oyster diseases and other concerns
17-5 which may affect the availability of oysters for harvest. These
17-6 studies shall consider the effects of natural environmental
17-7 conditions such as but not limited to salinity, temperature,
17-8 turbidity and other natural environmental conditions, as well as,
17-9 factors which may not be part of the natural environment such as
17-10 but not limited to chemical contamination, freshwater inflow
17-11 alterations, and ballast water discharges; and
17-12 (2) the department may conduct studies to investigate
17-13 and provide information about organisms which may be associated
17-14 with human illness which can be transmitted through the consumption
17-15 of oysters, particularly Vibrio parahaemolyticus and Vibrio
17-16 vulnificus. The studies shall consider factors such as but not
17-17 limited to natural occurrence, contamination, and effects of time,
17-18 temperature, and handling practices on the organisms.
17-19 SECTION 9. The importance of this legislation and the
17-20 crowded condition of the calendars in both houses create an
17-21 emergency and an imperative public necessity that the
17-22 constitutional rule requiring bills to be read on three several
17-23 days in each house be suspended, and this rule is hereby suspended,
17-24 and this Act take effect and be in force from and after its
17-25 passage, and it is so enacted.