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 harvests, purchases,
1-14 handles, stores, packs, labels, unloads at dockside, or holds
1-15 oysters taken from the water of this state shall pay the state
1-16 [department] a fee of $1 for each barrel of oysters harvested,
1-17 purchased, handled, or 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
1-21 purchase or pack oysters in containers that, when packed, exceed
1-22 110 pounds in weight. A dealer who violates this subsection is
1-23 liable for a penalty of $5 for each container that exceeds 110
1-24 pounds.
2-1 (c) A certified shellfish dealer shall pay a fee or penalty
2-2 imposed by Subsection (a) or (b) [this section] not later than the
2-3 20th [30th] day of the month following the month in which the
2-4 barrel of oysters was handled. A [certified shellfish] dealer who
2-5 fails to pay the fee or penalty in full within the prescribed
2-6 period is liable for the amount of the fee or penalty and an
2-7 additional [a] penalty of 10 percent of the amount of the fee or
2-8 penalty due. On certification by the comptroller that a fee is
2-9 past due, the [The] department may suspend, until the fee, penalty,
2-10 or additional penalty is paid, the shellfish certificate of a
2-11 certified shellfish dealer who fails to timely pay the fee,
2-12 penalty, or additional penalty in full. The department, on
2-13 certification from the comptroller that a certified shellfish
2-14 dealer has refused to pay a fee, penalty, or additional penalty on
2-15 written demand, may revoke the shellfish certificate of a certified
2-16 shellfish dealer who refuses to pay a fee, penalty, or additional
2-17 penalty [on written demand of the department].
2-18 (d) [(c)] The comptroller [department] shall collect
2-19 [deposit] fees and penalties [collected] under this section and may
2-20 adopt rules, forms, and procedures for submission of fees and
2-21 penalties under this section. Each month the comptroller shall
2-22 report to the department the fees and penalties that are submitted
2-23 to the comptroller.
2-24 (e) Before any other disposition of the fees and penalties
2-25 collected under this section is made, two percent of the amount of
2-26 the fees and penalties shall be deposited in the state treasury for
3-1 appropriation for the use of the comptroller in the administration
3-2 and enforcement of this section. The remainder of the fees and
3-3 penalties collected under this section shall be deposited to the
3-4 credit of the oyster sales account in the general revenue fund to
3-5 be allocated each year [quarter to the department] for
3-6 oyster-related activities, including:
3-7 (1) collecting bay water and shellfish meat samples;
3-8 (2) contracting for [water] sample analysis for
3-9 classification and opening or closing of oyster harvesting areas;
3-10 [(2) the study of organisms in oysters that are
3-11 harmful to consumers of oysters;]
3-12 (3) marking the boundaries of areas that are
3-13 designated open or closed under this subchapter [the education of
3-14 the public on health issues relating to oyster consumption];
3-15 (4) studying oyster diseases and other concerns
3-16 affecting the availability of oysters for harvest;
3-17 (5) studying organisms that may be associated with
3-18 human illness and that can be transmitted through the consumption
3-19 of oysters;
3-20 (6) promotion and advertising of the Texas oyster
3-21 industry by the Texas Department of Agriculture, including
3-22 information, education, and training to consumers on safe and
3-23 proper handling of oysters; and
3-24 (7) other oyster-related activities authorized or
3-25 required by this chapter [the sanitary handling of oysters at the
3-26 wholesale, retail, and consumer level; and]
4-1 [(5) the optional additional marking of the boundaries
4-2 of areas declared closed by the director].
4-3 (f) Money in the oyster sales account shall first be
4-4 allocated for funding the public health activities of bay water and
4-5 shellfish meat sample collection and analysis and wholesale,
4-6 retail, and consumer education before money is allocated for
4-7 research or promotion.
4-8 (g) Subtitles A and B, Title 2, Tax Code, apply to the
4-9 comptroller's administration, collection, and enforcement of this
4-10 section to the same extent as if the fee imposed under this section
4-11 were a tax imposed under Title 2, Tax Code.
4-12 [(d) The department shall adopt rules, forms, and procedures
4-13 to obtain from a certified shellfish dealer required to pay fees
4-14 under this section information on the:]
4-15 [(1) location of the oysters harvested;]
4-16 [(2) identity of the harvesting boat;]
4-17 [(3) identity of the captain and the number of crew of
4-18 the harvesting boat; and]
4-19 [(4) identity of the receiving certified shellfish
4-20 dealer.]
4-21 SECTION 3. Subchapter H, Chapter 436, Health and Safety
4-22 Code, is amended by adding Sections 436.104 through 436.108 to read
4-23 as follows:
4-24 Sec. 436.104. OYSTER PROGRAM. (a) The department shall
4-25 conduct sanitary surveys, bay water and shellfish meat sampling,
4-26 and any other activities that are necessary to classify the bays
5-1 from which oysters are harvested from private leases or public
5-2 reefs as authorized by Section 436.101.
5-3 (b) The department shall conduct reasonable and prudent
5-4 sampling activities at the earliest possible time following the
5-5 designation as a closed area of an area from which oysters are
5-6 harvested from private leases or public reefs:
5-7 (1) if a question exists about the closure, to confirm
5-8 the need for the closure; or
5-9 (2) if there is reason to believe that the sampling
5-10 will result in opening the area.
5-11 (c) In implementing the oyster program, the department shall
5-12 follow standards that are at least as stringent as the guidelines
5-13 adopted by the National Shellfish Sanitation Program. The
5-14 department's approach shall be consistent with the purpose and
5-15 intent of the National Shellfish Sanitation Program and the federal
5-16 Food and Drug Administration policy statements regarding the
5-17 consumption of raw molluscan shellfish.
5-18 (d) Until Vibrio parahaemolyticus guidelines are formally
5-19 adopted into the National Shellfish Sanitation Program, the
5-20 department shall follow standards that are at least as stringent as
5-21 guidelines of the Interim Control Plan for Vibrio parahaemolyticus
5-22 of the Interstate Shellfish Sanitation Conference for the purpose
5-23 of designating harvest areas as closed areas related to Vibrio
5-24 parahaemolyticus.
5-25 (e) The department shall open harvest areas designated as
5-26 closed areas due to excessive levels of Vibrio parahaemolyticus in
6-1 shellfish meat samples when the levels of Vibrio parahaemolyticus
6-2 in the shellfish meat samples return to baseline levels.
6-3 (f) The department shall open harvest areas designated as
6-4 closed areas due to sporadic non-outbreak illnesses as specified in
6-5 the Interim Control Plan when the levels in shellfish meats return
6-6 to baseline levels or, if tdh+ serotypes were confirmed as the
6-7 cause of the illnesses, when the virulent serotypes of Vibrio
6-8 parahaemolyticus are absent in two consecutive samples of shellfish
6-9 meats collected from the Vibrio parahaemolyticus sample stations in
6-10 the closed area.
6-11 (g) The department shall open harvest areas designated as
6-12 closed areas due to a confirmed Vibrio parahaemolyticus outbreak
6-13 when the department determines that Vibrio parahaemolyticus strains
6-14 of virulent serotypes are absent in those situations where 03:K6 or
6-15 other tdh+ serotypes were confirmed as the cause of the outbreak.
6-16 For purposes of this subsection, in Galveston Bay, Vibrio
6-17 parahaemolyticus virulent strains shall be considered absent when
6-18 25 shellfish meat samples from any delineated harvest area that has
6-19 been designated as a closed area do not result in reporting of the
6-20 virulent strain that caused the outbreak.
6-21 (h) If a second confirmed outbreak of Vibrio
6-22 parahaemolyticus illness occurs in an area, the department shall
6-23 open a harvest area designated as closed when 50 shellfish samples
6-24 do not result in the reporting of the virulent strain that caused
6-25 the outbreak.
6-26 (i) If harvest areas designated as closed areas as a result
7-1 of Vibrio parahaemolyticus cannot be opened as a result of the
7-2 sampling under Subsection (f) or (g), the areas may be opened when
7-3 environmental conditions develop that are unfavorable for Vibrio
7-4 parahaemolyticus growth or when environmental conditions shift to
7-5 conditions that are historically unrelated to outbreaks of Vibrio
7-6 parahaemolyticus.
7-7 Sec. 436.105. TEMPERATURE REQUIREMENTS. Following initial
7-8 refrigeration after unloading from a harvest boat, molluscan
7-9 shellfish shall be refrigerated in air temperatures at or below 45
7-10 degrees Fahrenheit at all times except during transfer from one
7-11 storage area or transportation vehicle to another. Except for an
7-12 immediate transfer, molluscan shellfish may not remain
7-13 unrefrigerated during transfer from one storage area or
7-14 transportation vehicle to another.
7-15 Sec. 436.106. TEMPERATURE ABUSE. If temperature abuse of
7-16 oysters associated with possible Vibrio parahaemolyticus illnesses
7-17 is identified at any point in the market chain from harvest to
7-18 consumer, the department may not designate a harvest area as a
7-19 closed area if the temperature abuse is the probable cause of the
7-20 illness. This section does not preclude closures for
7-21 investigations conducted in accordance with the National Shellfish
7-22 Sanitation Program that are necessary to protect public health. If
7-23 a harvest area has been designated as a closed area because the
7-24 investigation could not be completed within the time required in
7-25 the National Shellfish Sanitation Program and temperature abuse is
7-26 determined, as a result of the investigation, to be the probable
8-1 cause of the illnesses, the harvest area must be immediately
8-2 designated as an open area.
8-3 Sec. 436.107. TEXAS OYSTER COUNCIL. (a) The Texas Oyster
8-4 Council is created.
8-5 (b) The council is composed of:
8-6 (1) two members appointed by the board as nominated by
8-7 the Texas Oyster Growers and Dealers Association;
8-8 (2) one member appointed by the board as nominated by
8-9 the Coastal Oyster Leaseholder's Association;
8-10 (3) two members appointed by the board from a list of
8-11 oyster dealers who have held a shellfish certificate in this state
8-12 for not less than six months of each of the three years preceding
8-13 the nomination and who are certified at the time of appointment;
8-14 (4) one representative appointed by the chairman of
8-15 the Interstate Shellfish Sanitation Conference; and
8-16 (5) three consumer members, including one person
8-17 professionally licensed or with work experience in the field of
8-18 environmental survey, environmental sanitation, environmental
8-19 engineering, or a similar field related to environmental or
8-20 pollution conditions and their effect on molluscan shellfish
8-21 harvest areas, appointed by the speaker of the house of
8-22 representatives.
8-23 (c) Members of the Texas Oyster Council serve one-year terms
8-24 expiring August 31 of each year and may be reappointed at the end
8-25 of a term.
8-26 (d) A member of the Texas Oyster Council may not receive
9-1 compensation for service on the council and may not be reimbursed
9-2 for expenses incurred by the member while conducting the business
9-3 of the council.
9-4 (e) A person is not eligible for appointment as a consumer
9-5 member of the Texas Oyster Council if the person or the person's
9-6 spouse:
9-7 (1) is a harvester, processor, or wholesaler regulated
9-8 under this chapter;
9-9 (2) is employed by a harvester, processor, or
9-10 wholesaler regulated under this chapter;
9-11 (3) is a retailer of molluscan shellfish; or
9-12 (4) is employed by a retailer of molluscan shellfish.
9-13 (f) The Texas Oyster Council shall elect a presiding officer
9-14 from among its members.
9-15 Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL.
9-16 (a) The Texas Oyster Council shall:
9-17 (1) advise the board on the criteria used by the
9-18 director under Section 436.101 to designate growing areas as open
9-19 or closed areas;
9-20 (2) advise the board on the development of standards
9-21 and procedures relating to the licensing of molluscan shellfish
9-22 processors under this chapter;
9-23 (3) advise the board on the content of the rules
9-24 adopted to implement the provisions of this chapter relating to
9-25 molluscan shellfish;
9-26 (4) perform any other functions requested by the board
10-1 in implementing and administering the provisions of this chapter
10-2 relating to molluscan shellfish; and
10-3 (5) review information brought before the council
10-4 relating to molluscan shellfish.
10-5 (b) The Texas Oyster Council is entitled to:
10-6 (1) obtain information that is furnished to the
10-7 department or developed by the department as part of an
10-8 investigation of a food-borne illness that is suspected of being
10-9 related to molluscan shellfish, including:
10-10 (A) location and handling practices where
10-11 suspect food may have been served;
10-12 (B) product labeling and records;
10-13 (C) distribution agent, methods, and handling
10-14 practices;
10-15 (D) sources of product;
10-16 (E) sample collection and laboratory analysis;
10-17 and
10-18 (F) any other nonmedical information that may
10-19 aid in determining causes or routes of transmission of food-borne
10-20 illness or suspected food-borne illness; and
10-21 (2) review the information provided under Subdivision
10-22 (1) and report to the department on any matter of concern.
10-23 (c) The Texas Oyster Council may establish procedures for:
10-24 (1) meetings of the council;
10-25 (2) submission, consideration, and resolution of
10-26 issues before the council; and
11-1 (3) reporting relating to the council's activities.
11-2 (d) The Texas Oyster Council may meet at the request of the
11-3 department, may meet periodically to review completed activities of
11-4 the department, or may meet to review ongoing activities of the
11-5 department if the department appears to have exceeded the
11-6 guidelines established in the National Shellfish Sanitation
11-7 Program.
11-8 (e) A member of the Texas Oyster Council who receives
11-9 information under Subsection (b) from confidential communications
11-10 or records, as identified by the department, may not disclose the
11-11 information outside of the council or the department. The
11-12 department, by providing to the council public information that is
11-13 confidential or otherwise excepted from public disclosure under
11-14 law, does not waive or affect the confidentiality of the
11-15 information for the purposes of state or federal law or waive the
11-16 right to assert exceptions to required disclosure of the
11-17 information.
11-18 (f) The Texas Oyster Council is subject to Chapter 551,
11-19 Government Code. The Texas Oyster Council is not required to
11-20 conduct an open meeting to deliberate confidential communications
11-21 and records provided under this section relating to the
11-22 investigation of a food-borne illness that is suspected of being
11-23 related to molluscan shellfish.
11-24 (g) A report produced by the Texas Oyster Council is public
11-25 information.
11-26 SECTION 4. Title 3, Agriculture Code, is amended by adding
12-1 Chapter 47 to read as follows:
12-2 CHAPTER 47. TEXAS OYSTER PROGRAM
12-3 Sec. 47.001. PROMOTION AND ADVERTISEMENT. (a) The
12-4 department may promote and advertise the Texas oyster industry by:
12-5 (1) using current market research to develop an oyster
12-6 marketing plan to increase consumption of Texas oysters;
12-7 (2) conducting a public relations campaign to create a
12-8 responsible and accurate image of the Texas oyster industry;
12-9 (3) providing information, education, and training to
12-10 consumers on safe and proper handling of oysters; and
12-11 (4) using other methods the department considers
12-12 appropriate.
12-13 (b) The department, following guidance of the oyster
12-14 advisory committee established under Section 47.002, may use a
12-15 portion of the oyster sales fee funds provided for administrative
12-16 purposes.
12-17 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
12-18 commissioner shall appoint an oyster advisory committee to provide
12-19 guidance and direction on the programs and activities established
12-20 under this chapter and expenditures of the funds appropriated for
12-21 the purposes of this chapter.
12-22 (b) Members of the advisory committee serve without
12-23 compensation or reimbursement of expenses.
12-24 (c) The advisory committee shall meet and elect a
12-25 chairperson from its members and shall conduct other meetings it
12-26 considers necessary to provide guidance and direction to the
13-1 department.
13-2 (d) The advisory committee consists of the following nine
13-3 members:
13-4 (1) six members appointed by the commissioner from a
13-5 list of nominations submitted individually by oyster dealers who
13-6 have been certified in Texas for at least 12 months of each year of
13-7 the three years preceding the nomination;
13-8 (2) two members appointed by the commissioner from a
13-9 list of nominations submitted individually by oyster dealers who
13-10 have been certified in Texas for at least six months of each year
13-11 of the three years preceding the nomination; and
13-12 (3) one member appointed by the commissioner
13-13 representing consumer interests.
13-14 (e) The advisory committee shall develop its own bylaws
13-15 under which it shall operate. The bylaws shall stipulate that five
13-16 members constitute a quorum sufficient to conduct meetings and
13-17 business of the advisory committee.
13-18 (f) An advisory committee member serves a three-year term,
13-19 with the terms of three members expiring August 31 of each year.
13-20 (g) A member of the advisory committee may be reappointed to
13-21 the advisory committee.
13-22 SECTION 5. Subchapter C, Chapter 87, Education Code, is
13-23 amended by adding Section 87.207 to read as follows:
13-24 Sec. 87.207. MOLLUSCAN SHELLFISH PROGRAMS. (a) The marine
13-25 biology department of Texas A&M University at Galveston may:
13-26 (1) evaluate the expansion and production of oysters
14-1 from private oyster leases during the months of May through October
14-2 of each year; and
14-3 (2) study the possible impacts of conditions observed
14-4 on public harvest outside that period.
14-5 (b) The marine biology department may investigate and
14-6 provide information about oyster diseases and other concerns that
14-7 may affect the availability of oysters for harvest. The
14-8 investigation shall consider the effects of natural environmental
14-9 conditions, including salinity, temperature, turbidity, and other
14-10 natural environmental conditions, and shall also consider factors
14-11 that may not be part of the natural environment, including chemical
14-12 contamination, freshwater inflow alterations, and ballast water
14-13 discharges.
14-14 (c) The marine biology department may investigate and
14-15 provide information about organisms that may be associated with
14-16 human illness that can be transmitted through the consumption of
14-17 oysters, particularly Vibrio parahaemolyticus and Vibrio
14-18 vulnificus. The investigation must consider factors such as
14-19 natural occurrence, contamination, and the effects of time,
14-20 temperature, and handling practices on the organisms.
14-21 (d) The marine biology department shall give priority to
14-22 activities related to public health.
14-23 SECTION 6. In making the initial appointments of the Oyster
14-24 Advisory Committee members under Section 47.002, Agriculture Code,
14-25 as added by this Act, the commissioner of agriculture shall
14-26 appoint:
15-1 (1) two members from the list submitted under
15-2 Subdivision (1), Subsection (d), Section 47.002, Agriculture Code,
15-3 as added by this Act, and one member from the list submitted under
15-4 Subdivision (2), Subsection (d), Section 47.002, Agriculture Code,
15-5 as added by this Act, to serve a term expiring August 31, 2000;
15-6 (2) two members from the list submitted under
15-7 Subdivision (1), Subsection (d), Section 47.002, Agriculture Code,
15-8 as added by this Act, and one member from the list submitted under
15-9 Subdivision (2), Subsection (d), Section 47.002, Agriculture Code,
15-10 as added by this Act, to serve a term expiring August 31, 2001; and
15-11 (3) two members from the list submitted under
15-12 Subdivision (1), Subsection (d), Section 47.002, Agriculture Code,
15-13 as added by this Act, and the public member appointed under
15-14 Subdivision (3), Subsection (d), Section 47.002, Agriculture Code,
15-15 as added by this Act, to serve a term expiring August 31, 2002.
15-16 SECTION 7. The importance of this legislation and the
15-17 crowded condition of the calendars in both houses create an
15-18 emergency and an imperative public necessity that the
15-19 constitutional rule requiring bills to be read on three several
15-20 days in each house be suspended, and this rule is hereby suspended,
15-21 and that this Act take effect and be in force from and after its
15-22 passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1685 passed the Senate on
April 29, 1999, by the following vote: Yeas 30, Nays 0; and that
the Senate concurred in House amendments on May 21, 1999, by the
following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1685 passed the House, with
amendments, on May 11, 1999, by the following vote: Yeas 145,
Nays 0, one present not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor