By: Bernsen, Jackson S.B. No. 1685
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation and promotion of the oyster industry in
1-2 this state.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter A, Chapter 431, Health and Safety
1-5 Code, is amended by adding Section 431.006 to read as follows:
1-6 Sec. 431.006. COMPLIANCE WITH OTHER LAW; MOLLUSCAN
1-7 SHELLFISH. A person who is subject to this chapter and who handles
1-8 molluscan shellfish, as that term is defined by Section 436.002,
1-9 shall comply with Section 436.105.
1-10 SECTION 2. Section 436.103, Health and Safety Code, is
1-11 amended to read as follows:
1-12 Sec. 436.103. FEE ON OYSTER SALES; PENALTIES. (a) The
1-13 first [A] certified shellfish dealer who handles, stores, packs,
1-14 labels, unloads at dockside, or holds oysters taken from the water
1-15 of this state shall pay the state [department] a fee of $1 for each
1-16 barrel of oysters processed by the certified shellfish dealer.
1-17 (b) For purposes of assessing the fee required by this
1-18 section, three 100-pound containers of oysters is the equivalent of
1-19 one barrel of oysters. A certified shellfish dealer may not pack
1-20 oysters in containers that, when packed, exceed 110 pounds in
1-21 weight. A dealer who violates this subsection is liable for a
1-22 penalty of $5 for each container that exceeds 110 pounds.
1-23 (c) A certified shellfish dealer shall pay a fee or penalty
1-24 imposed by Subsection (a) or (b) [this section] not later than the
2-1 20th [30th] day of the month following the month in which the
2-2 barrel of oysters was handled. A [certified shellfish] dealer who
2-3 fails to pay the fee or penalty in full within the prescribed
2-4 period is liable for the amount of the fee or penalty and an
2-5 additional [a] penalty of 10 percent of the amount of the fee or
2-6 penalty due. On certification by the comptroller that a fee is
2-7 past due, the [The] department may suspend, until the fee, penalty,
2-8 or additional penalty is paid, the shellfish certificate of a
2-9 certified shellfish dealer who fails to timely pay the fee,
2-10 penalty, or additional penalty in full. The department, on
2-11 certification from the comptroller that a certified shellfish
2-12 dealer has refused to pay a fee, penalty, or additional penalty on
2-13 written demand, may revoke the shellfish certificate of a certified
2-14 shellfish dealer who refuses to pay a fee, penalty, or additional
2-15 penalty [on written demand of the department].
2-16 (d) [(c)] The comptroller [department] shall collect
2-17 [deposit] fees and penalties [collected] under this section and may
2-18 adopt rules, forms, and procedures for submission of fees and
2-19 penalties under this section. Each month the comptroller shall
2-20 report to the department the fees and penalties that are submitted
2-21 to the comptroller.
2-22 (e) Before any other disposition of the fees and penalties
2-23 collected under this section is made, two percent of the amount of
2-24 the fees and penalties shall be deposited in the state treasury for
2-25 appropriation for the use of the comptroller in the administration
2-26 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].
4-1 (f) Subtitles A and B, Title 2, Tax Code, apply to the
4-2 comptroller's administration, collection, and enforcement of this
4-3 section to the same extent as if the fee imposed under this section
4-4 were a tax imposed under Title 2, Tax Code.
4-5 [(d) The department shall adopt rules, forms, and procedures
4-6 to obtain from a certified shellfish dealer required to pay fees
4-7 under this section information on the:]
4-8 [(1) location of the oysters harvested;]
4-9 [(2) identity of the harvesting boat;]
4-10 [(3) identity of the captain and the number of crew of
4-11 the harvesting boat; and]
4-12 [(4) identity of the receiving certified shellfish
4-13 dealer.]
4-14 SECTION 3. Subchapter H, Chapter 436, Health and Safety
4-15 Code, is amended by adding Sections 436.104 through 436.108 to read
4-16 as follows:
4-17 Sec. 436.104. OYSTER PROGRAM. (a) The department shall
4-18 conduct sanitary surveys, bay water and shellfish meat sampling,
4-19 and any other activities that are necessary to classify the bays
4-20 from which oysters are harvested from private leases or public
4-21 reefs and the director shall continue to designate those areas as
4-22 open areas as much as possible while protecting public health.
4-23 (b) The department shall, subject to reasonable and prudent
4-24 safety concerns, conduct sampling activities at the earliest
4-25 possible time following the designation as a closed area of an area
4-26 from which oysters are harvested from private leases or public
5-1 reefs:
5-2 (1) if a question exists about the closure, to confirm
5-3 the need for the closure; or
5-4 (2) if there is reason to believe that the sampling
5-5 will result in opening the area.
5-6 (c) In implementing the oyster program, the department shall
5-7 follow standards that are at least as stringent as the guidelines
5-8 adopted by the National Shellfish Sanitation Program. The
5-9 department's approach shall be consistent with the purpose and
5-10 intent of the National Shellfish Sanitation Program and the federal
5-11 Food and Drug Administration policy statements regarding the
5-12 consumption of raw molluscan shellfish.
5-13 Sec. 436.105. TEMPERATURE REQUIREMENTS. Molluscan shellfish
5-14 shall be refrigerated in air temperatures at or below 45 degrees
5-15 Fahrenheit at all times except during transfer from one storage
5-16 area or transportation vehicle to another. Except for an immediate
5-17 transfer, molluscan shellfish may not remain unrefrigerated during
5-18 transfer from one storage area or transportation vehicle to
5-19 another.
5-20 Sec. 436.106. TEMPERATURE ABUSE. If temperature abuse of
5-21 oysters associated with possible Vibrio parahaemolyticus illnesses
5-22 is identified at any point in the market chain from harvest to
5-23 consumer, the department may not designate a harvest area as a
5-24 closed area unless the temperature abuse does not appear to be the
5-25 possible cause of the illness.
5-26 Sec. 436.107. TEXAS OYSTER COUNCIL. (a) The Texas Oyster
6-1 Council is created.
6-2 (b) The council is composed of:
6-3 (1) two members appointed by the board from a list of
6-4 nominations submitted by the Texas Oyster Growers and Dealers
6-5 association;
6-6 (2) two members appointed by the board from a list of
6-7 oyster dealers who have held a shellfish certificate in this state
6-8 for not less than six months of each of the three years preceding
6-9 the nomination and who are certified at the time of appointment;
6-10 (3) one representative appointed by the chairman of
6-11 the Interstate Shellfish Sanitation Conference; and
6-12 (4) two consumer members appointed by the speaker of
6-13 the house of representatives.
6-14 (c) Members of the Texas Oyster Council serve one-year terms
6-15 expiring August 31 of each year and may be reappointed at the end
6-16 of a term.
6-17 (d) A member of the Texas Oyster Council may not receive
6-18 compensation for service on the council and may not be reimbursed
6-19 for expenses incurred by the member while conducting the business
6-20 of the council.
6-21 (e) A person is not eligible for appointment as a consumer
6-22 member of the Texas Oyster Council if the person or the person's
6-23 spouse:
6-24 (1) is a harvester, processor, or wholesaler regulated
6-25 under this chapter;
6-26 (2) is employed by a harvester, processor, or
7-1 wholesaler regulated under this chapter;
7-2 (3) is a retailer of molluscan shellfish; or
7-3 (4) is employed by a retailer of molluscan shellfish.
7-4 (f) The Texas Oyster Council shall elect a presiding officer
7-5 from among its members.
7-6 Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL.
7-7 (a) The Texas Oyster Council shall:
7-8 (1) advise the board on the criteria used by the
7-9 director under Section 436.101 to designate growing areas as open
7-10 or closed areas;
7-11 (2) advise the board on the development of standards
7-12 and procedures relating to the licensing of molluscan shellfish
7-13 processors under this chapter;
7-14 (3) advise the board on the content of the rules
7-15 adopted to implement the provisions of this chapter relating to
7-16 molluscan shellfish;
7-17 (4) perform any other functions requested by the board
7-18 in implementing and administering the provisions of this chapter
7-19 relating to molluscan shellfish; and
7-20 (5) review information brought before the council
7-21 relating to molluscan shellfish.
7-22 (b) The Texas Oyster Council is entitled to:
7-23 (1) obtain information that is furnished to the
7-24 department or developed by the department as part of an
7-25 investigation of a food-borne illness that is suspected of being
7-26 related to molluscan shellfish, including:
8-1 (A) location and handling practices where
8-2 suspect food may have been served;
8-3 (B) product labeling and records;
8-4 (C) distribution agent, methods, and handling
8-5 practices;
8-6 (D) sources of product;
8-7 (E) sample collection and laboratory analysis;
8-8 and
8-9 (F) any other nonmedical information that may
8-10 aid in determining causes or routes of transmission of food-borne
8-11 illness or suspected food-borne illness; and
8-12 (2) review the information provided under Subdivision
8-13 (1) and report to the department on any matter of concern.
8-14 (c) The Texas Oyster Council may establish procedures for:
8-15 (1) meetings of the council;
8-16 (2) submission, consideration, and resolution of
8-17 issues before the council; and
8-18 (3) reporting relating to the council's activities.
8-19 (d) A member of the Texas Oyster Council who receives
8-20 information under Subsection (b) from confidential communications
8-21 or records, as identified by the department, may not disclose the
8-22 information outside of the council or the department. The
8-23 department, by providing to the council public information that is
8-24 confidential or otherwise excepted from public disclosure under
8-25 law, does not waive or affect the confidentiality of the
8-26 information for the purposes of state or federal law or waive the
9-1 right to assert exceptions to required disclosure of the
9-2 information.
9-3 (e) The Texas Oyster Council is subject to Chapter 551,
9-4 Government Code. The Texas Oyster Council is not required to
9-5 conduct an open meeting to deliberate confidential communications
9-6 and records provided under this section relating to the
9-7 investigation of a food-borne illness that is suspected of being
9-8 related to molluscan shellfish.
9-9 SECTION 4. Title 3, Agriculture Code, is amended by adding
9-10 Chapter 47 to read as follows:
9-11 CHAPTER 47. TEXAS OYSTER PROGRAM
9-12 Sec. 47.001. DUTIES. (a) The department may:
9-13 (1) promote and advertise the Texas oyster industry;
9-14 (2) use current market research to develop an oyster
9-15 marketing plan to increase consumption of Texas oysters;
9-16 (3) conduct a public relations campaign to create a
9-17 responsible and accurate image of the Texas oyster industry; and
9-18 (4) provide information, education, or training to
9-19 consumers on safe and proper handling of oysters.
9-20 (b) The department, in consultation with the advisory
9-21 committee appointed under Section 47.002, may use money
9-22 appropriated to the department to implement this chapter for
9-23 administrative expenses related to this chapter.
9-24 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
9-25 commissioner shall appoint an Oyster Advisory Committee to provide
9-26 guidance and direction on the programs and activities established
10-1 under this chapter and expenditures of the money appropriated for
10-2 this chapter.
10-3 (b) A member of the advisory committee may not receive
10-4 compensation for service on the committee and may not be reimbursed
10-5 for expenses incurred while conducting the business of the advisory
10-6 committee.
10-7 (c) The advisory committee is composed of:
10-8 (1) six members appointed by the commissioner from a
10-9 list of nominations submitted individually by molluscan shellfish
10-10 dealers who have held a shellfish certificate issued under Chapter
10-11 436, Health and Safety Code, for not less than 12 months of each of
10-12 the three years preceding the nomination;
10-13 (2) two members appointed by the commissioner from a
10-14 list of nominations submitted individually by molluscan shellfish
10-15 dealers who have held a shellfish certificate issued under Chapter
10-16 436, Health and Safety Code, for not less than six months of each
10-17 of the three years preceding the nomination and who may not submit
10-18 a nomination under Subdivision (1); and
10-19 (3) one public member who represents consumer
10-20 interests appointed by the commissioner.
10-21 (d) The advisory committee shall meet and elect a presiding
10-22 officer from among its members and shall adopt bylaws for the
10-23 conduct of its activities. The bylaws must provide that five
10-24 members constitute a quorum sufficient to conduct meetings and
10-25 business of the advisory committee.
10-26 (e) Advisory committee members serve staggered three-year
11-1 terms, with the terms of three members expiring August 31 of each
11-2 year. A member of the committee may be reappointed.
11-3 SECTION 5. Subchapter C, Chapter 87, Education Code, is
11-4 amended by adding Section 87.207 to read as follows:
11-5 Sec. 87.207. MOLLUSCAN SHELLFISH PROGRAMS. (a) The marine
11-6 biology department of Texas A&M University at Galveston may:
11-7 (1) support the expansion and production of oysters
11-8 from private oyster leases during the months of May through October
11-9 of each year; and
11-10 (2) study the possible impacts of conditions observed
11-11 on public harvest outside that period.
11-12 (b) The marine biology department may investigate and
11-13 provide information about oyster diseases and other concerns that
11-14 may affect the availability of oysters for harvest. The
11-15 investigation shall consider the effects of natural environmental
11-16 conditions, including salinity, temperature, turbidity, and other
11-17 natural environmental conditions, and shall also consider factors
11-18 that may not be part of the natural environment, including chemical
11-19 contamination, freshwater inflow alterations, and ballast water
11-20 discharges.
11-21 (c) The marine biology department may investigate and
11-22 provide information about organisms that may be associated with
11-23 human illness that can be transmitted through the consumption of
11-24 oysters, particularly Vibrio parahaemolyticus and Vibrio
11-25 vulnificus. The investigation must consider factors such as
11-26 natural occurrence, contamination, and the effects of time,
12-1 temperature, and handling practices on the organisms.
12-2 SECTION 6. In making the initial appointments of the Oyster
12-3 Advisory Committee members under Section 47.002, Agriculture Code,
12-4 as added by this Act, the commissioner of agriculture shall
12-5 appoint:
12-6 (1) two members from the list submitted under
12-7 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
12-8 as added by this Act, and one member from the list submitted under
12-9 Subdivision (2), Subsection (c), Section 47.002, Agriculture Code,
12-10 as added by this Act, to serve a term expiring August 31, 2000;
12-11 (2) two members from the list submitted under
12-12 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
12-13 as added by this Act, and one member from the list submitted under
12-14 Subdivision (2), Subsection (c), Section 47.002, Agriculture Code,
12-15 as added by this Act, to serve a term expiring August 31, 2001; and
12-16 (3) two members from the list submitted under
12-17 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
12-18 as added by this Act, and the public member appointed under
12-19 Subdivision (3), Subsection (c), Section 47.002, Agriculture Code,
12-20 as added by this Act, to serve a term expiring August 31, 2002.
12-21 SECTION 7. The importance of this legislation and the
12-22 crowded condition of the calendars in both houses create an
12-23 emergency and an imperative public necessity that the
12-24 constitutional rule requiring bills to be read on three several
12-25 days in each house be suspended, and this rule is hereby suspended,
12-26 and that this Act take effect and be in force from and after its
13-1 passage, and it is so enacted.