By: Bernsen S.B. No. 1685
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the release of information associated with food borne
1-2 illness, regulation of the distribution of molluscan shellfish,
1-3 collection and use of the Oyster Sales Fee, regulation of the
1-4 harvesting of molluscan shellfish, promotion and advertisement of
1-5 the Texas Oyster Industry, and research regarding oyster diseases
1-6 and organisms associated with oysters which may cause human
1-7 illness.
1-8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-9 SECTION 1. DEFINITIONS. For the purposes of this act:
1-10 "Interim Control Plan for Vibrio parahaemolyticus (ICPVp)" means
1-11 the plan adopted by the ISSC to provide guidance to state shellfish
1-12 control authorities when dealing with the naturally occurring
1-13 marine bacterium, Vibrio parahaemolyticus, until such time as
1-14 definitive guidelines are incorporated into the NSSP Guide for the
1-15 Sanitary Control of Molluscan Shellfish. "Interstate Shellfish
1-16 Sanitation Conference (ISSC)" means the voluntary organization of
1-17 state shellfish control agency representatives, in cooperation with
1-18 federal agency representatives, the shellfish industry, and
1-19 academicians and researchers, which provides guidance for sanitary
1-20 control of molluscan shellfish in this country. "National
1-21 Shellfish Sanitation Program (NSSP)" means the cooperative
1-22 state-federal-industry program for sanitary control of molluscan
2-1 shellfish administered by the U.S. Food and Drug Administration
2-2 that is adequate to insure that the shellfish produced in
2-3 accordance with program guidelines will be safe and sanitary.
2-4 SECTION 2. Section 81.046, Health and Safety Code, is
2-5 amended by adding a new subsection (e) to read as follows:
2-6 Sec. 81.046. Confidentiality. (a) Reports, records, and
2-7 information furnished to a health authority or the department that
2-8 relate to cases or suspected cases of diseases or health conditions
2-9 are confidential and may be used only for the purposes of this
2-10 chapter.
2-11 (b) Reports, records, and information relating to cases or
2-12 suspected cases of diseases or health conditions are not public
2-13 information under Chapter 424, Acts of the 63rd Legislature,
2-14 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
2-15 Statutes), and may not be released or made public on subpoena or
2-16 otherwise except as provided by Subsections (c), [and] (d), and
2-17 (e).
2-18 (c) Medical or epidemiological information may be released:
2-19 (1) for statistical purposes if released in a manner that prevents
2-20 the identification of any person; (2) with the consent of each
2-21 person identified in the information; (3) to medical personnel,
2-22 appropriate state agencies, or county and district courts to comply
2-23 with this chapter and related rules relating to the control and
2-24 treatment of communicable diseases and health conditions; (4) to
2-25 appropriate federal agencies, such as the Centers for Disease
2-26 Control of the United States Public Health Service, but the
3-1 information must be limited to the name, address, sex, race, and
3-2 occupation of the patient, the date of disease onset, the probable
3-3 source of infection, and other requested information relating to
3-4 the case or suspected case of a communicable disease or health
3-5 condition; or (5) to medical personnel to the extent necessary in a
3-6 medical emergency to protect the health or life of the person
3-7 identified in the information.
3-8 (d) In a case of sexually transmitted disease involving a
3-9 minor under 13 years of age, information may not be released,
3-10 except that the child's name, age, and address and the name of the
3-11 disease may be released to appropriate agents as required by
3-12 Chapter 261, Family Code. If that information is required in a
3-13 court proceeding involving child abuse, the information shall be
3-14 disclosed in camera.
3-15 (e) Reports, records, and information furnished to or
3-16 collected by a health authority or the department as part of food
3-17 borne illness or suspected food borne illness investigation or
3-18 epidemiological investigations related to food borne illness or
3-19 suspected food borne illness which pertain to the locations and
3-20 handling practices where suspect food may have been served, product
3-21 labeling and records, distribution agents, methods, and handling
3-22 practices, sources of products, sample collection and laboratory
3-23 analysis, and/or any other non-medical information which may aid in
3-24 determining causes and/or routes of transmission of food borne
3-25 illness or suspected food borne illness shall not be considered
3-26 public information under Chapter 424, Acts of the 63rd Legislature,
4-1 Regular Session, 1973 (Article 6252-17-a, Vernon's Texas Civil
4-2 Statutes), but shall be released by the health authority or
4-3 department upon written request to any licensed or certified member
4-4 of the implicated industry. Information related to food borne or
4-5 suspected food borne illness may be released to protect public
4-6 health only when a case control study has established an
4-7 epidemiological link to an implicated food.
4-8 [(e)] (f) A state or public health district officer or
4-9 employee, local health department officer or employee, or health
4-10 authority may not be examined in a civil, criminal, special, or
4-11 other proceeding as to the existence or contents of pertinent
4-12 records of, or reports or information about, a person examined or
4-13 treated for a reportable disease by the public health district,
4-14 local health department, or health authority without that person's
4-15 consent.
4-16 SECTION 3. Sections 431.002 and 431.005, Health and Safety
4-17 Code, are amended as follows:
4-18 Sec. 431.002. Definitions. Add a new definition, "(24)
4-19 'Molluscan shellfish' means an edible species of oyster, clam, or
4-20 mussel that is shucked, in the shell, fresh, or fresh frozen, in
4-21 whole or in part, as defined by the National Shellfish Sanitation
4-22 Program.", and renumber all subsequent definitions.
4-23 Sec. 431.005. Provisions Regarding The Sale of Food, Drugs,
4-24 Devices, or Cosmetics. The provisions of this chapter regarding
4-25 the selling of food, drugs, devices, or cosmetics, shall be
4-26 considered to include the manufacture, production, processing,
5-1 packaging, exposure, offer, possession, and holding of any such
5-2 article for sale; and the sale, dispensing, and giving of any such
5-3 article, and the supplying or applying of any such articles in the
5-4 conduct of any food, drug, or cosmetic establishment. Molluscan
5-5 shellfish shall be regulated under the provisions and rules of
5-6 Chapter 436 of this code at all levels of the market chain from
5-7 harvest to consumer.
5-8 SECTION 4. Section 436.103, Texas Health and Safety Code, is
5-9 amended to read as follows:
5-10 Sec. 436.103. Oyster Sales Fee; Penalties. (a) A certified
5-11 shellfish dealer who handles oysters taken from the waters of this
5-12 state shall pay the [department] state a fee of $1 for each barrel
5-13 of oysters processed by the certified shellfish dealer. A barrel
5-14 of oysters is equivalent to three one-hundred pound sacks of
5-15 oysters. A dealer who packs oysters in sacks exceeding 110 pounds
5-16 is liable for a penalty of $5.00 per sack of those sacks found
5-17 exceeding 110 pounds. These penalties shall be payable under the
5-18 same terms established in this section for payment of fees.
5-19 (b) A certified shellfish dealer shall pay a fee imposed by
5-20 this section not later than the 20th day of the month following the
5-21 month in which the barrel of oysters was handled. A certified
5-22 dealer who fails to pay the fee in full within the prescribed
5-23 period is liable for a penalty of 10 percent of the amount due.
5-24 The department may suspend, upon certification by the Comptroller
5-25 that a fee or penalty is past due, until the fee or penalty is
5-26 paid, the shellfish certificate of a certified shellfish dealer who
6-1 fails to timely pay the fee or penalty in full. The department,
6-2 upon certification from the Comptroller that a certified dealer has
6-3 refused to pay a fee or penalty on written demand, may revoke the
6-4 certificate of compliance of a certified dealer who refuses to pay
6-5 a fee or penalty on written demand of the [department] Comptroller.
6-6 [(c) The department shall deposit fees and penalties
6-7 collected under this section to the credit of the general revenue
6-8 fund to be allocated each quarter to the department for
6-9 oyster-related activities, including:]
6-10 [(1) contracting for water sample analysis for
6-11 classification and opening and closing of oyster harvesting areas;]
6-12 [(2) the study of organisms in oysters that are
6-13 harmful to consumers of oysters;]
6-14 [(3) the education of the public on health issues
6-15 relating to oyster consumption;]
6-16 [(4) the sanitary handling of oysters at the
6-17 wholesale, retail, and consumer level; and]
6-18 [(5) the optional additional marking of the boundaries
6-19 of areas declared closed by the director.]
6-20 [(d) The department shall adopt rules, forms, and procedures
6-21 to obtain from a certified shellfish dealer required to pay fees
6-22 under this section information on the:]
6-23 [(1) location of the oysters harvested;]
6-24 [(2) identity of the harvesting boat;]
6-25 [(3) identity of the captain and the number of crew of
6-26 the harvesting boat; and]
7-1 [(4) identity of the receiving certified shellfish
7-2 dealer.]
7-3 (c) The comptroller may adopt rules, forms, and procedures
7-4 for submission of fees under this section.
7-5 (d) Fees and penalties collected under this section shall be
7-6 submitted to the Comptroller. The Comptroller shall report to the
7-7 department monthly the fees and penalties submitted.
7-8 (e) Before any other allocation of the fees collected under
7-9 this section is made, two percent of such fees shall be deposited
7-10 in the state treasury for the use of the comptroller in the
7-11 administration and enforcement of this section. The remainder of
7-12 the fees and penalties collected under this section shall be
7-13 deposited to the credit of the Oyster Sales account in the general
7-14 revenue fund to be allocated each year for oyster related
7-15 activities including, but not limited to:
7-16 (1) collecting bay water and shellfish meat samples;
7-17 (2) contracting for sample analysis for classification
7-18 and opening or closing of oyster harvesting areas;
7-19 (3) marking of the boundaries of classified areas;
7-20 (4) studying oyster diseases and other concerns
7-21 affecting the availability of oysters for harvest;
7-22 (5) studying organisms which may be associated with
7-23 human illness which can be transmitted through the consumption of
7-24 oysters;
7-25 (6) promotion and advertising of the Texas Oyster
7-26 Industry by the Texas Department of Agriculture, including
8-1 information, education, and/or training to wholesalers, retailers,
8-2 and consumers on safe and proper handling of oysters; and
8-3 (7) as otherwise set out in the other provisions of
8-4 this law.
8-5 (f) The provisions of Subtitle A and B, Tax Code, are
8-6 applicable to the comptroller's administration, collection, and
8-7 enforcement of this section to the same extent as if this were a
8-8 tax imposed under Title 2 of the Tax Code.
8-9 SECTION 5. Subchapter H, Health and Safety Code is amended
8-10 by adding a new Section 436.104 as follows:
8-11 Sec. 436.104. OYSTER LEASE PROGRAM. (a) The department
8-12 shall conduct the necessary activities to allow production of
8-13 oysters from private oyster leases during the months of May through
8-14 October of each year.
8-15 (b) The department shall conduct such sanitary surveys, bay
8-16 water and shellfish meat sampling, and any other activities that
8-17 are necessary to classify the bays where oysters are harvested from
8-18 private leases and/or public reefs and shall maintain those areas
8-19 in the open status as much as possible while protecting public
8-20 health.
8-21 (c) The department shall, using reasonable and prudent
8-22 safety concerns, conduct sampling activities at the earliest
8-23 possible time following closures of areas where oysters are
8-24 harvested from private leases or public reefs to confirm the need
8-25 for the closure if any questions exist about the closure.
8-26 (d) The department shall, using reasonable and prudent
9-1 safety concerns, conduct sampling activities at the earliest
9-2 possible time following closures of areas where oysters are
9-3 harvested from private leases or public reefs if there is reason to
9-4 believe that the sampling will result in opening the areas.
9-5 (e) The department shall follow the Vibrio parahaemolyticus
9-6 guidelines of the National Shellfish Sanitation Program when they
9-7 are officially incorporated into the NSSP. Until then, the
9-8 department shall follow the current Interstate Shellfish Sanitation
9-9 Conference Interim Control Plan for Vibrio parahaemolyticus (ICPVp)
9-10 and any modifications that may be adopted at subsequent ISSC
9-11 meetings, with the following stipulations:
9-12 (1) Illnesses used for implementing ICPVp actions
9-13 shall be confirmed by laboratory analysis as being caused by the
9-14 same virulent strain of Vibrio parahaemolyticus before any action
9-15 is implemented.
9-16 (2) If a closure of an area occurs because of
9-17 illnesses confirmed as being caused by the same virulent strain of
9-18 Vibrio parahaemolyticus the area shall be opened when twenty (20)
9-19 samples of oyster meats collected in a fourteen-day period from the
9-20 area in addition to the ongoing routine Vibrio parahaemolyticus
9-21 research do not result in the finding of the causative virulent
9-22 strain of Vibrio parahaemolyticus.
9-23 (f) The department shall implement a monitoring and
9-24 enforcement program which investigates possible temperature abuse
9-25 on product from harvesting through retail.
9-26 (1) If temperature abuse of oysters is identified
10-1 during the monitoring program, the department shall initiate
10-2 enforcement action against all entities involved in the abuse.
10-3 (2) If temperature abuse of oysters associated with
10-4 possible Vibrio parahaemolyticus illnesses is identified at any
10-5 point in the market chain from harvest to consumer, the department
10-6 shall not close any harvest areas unless the temperature abuse does
10-7 not appear to be the possible cause of the illness.
10-8 (g) The guidelines established in (e), (1), and (2) above
10-9 shall become effective on the effective date of this Act and shall
10-10 remain in effect until such time as more definitive guidelines are
10-11 provided in the ICPVp or Vibrio parahaemolyticus guidelines are
10-12 officially incorporated into the NSSP.
10-13 SECTION 6. Subchapter I, Chapter 436, Health and Safety
10-14 Code, is amended by adding Section 436.116 to read as follows:
10-15 Sec. 436.116. TEXAS OYSTER COUNCIL. (a) There shall be a
10-16 Texas Oyster Council.
10-17 (b) The council shall advise the Board regarding the
10-18 following:
10-19 (1) the criteria for opening and closing of oyster
10-20 harvest areas under this chapter;
10-21 (2) the development of standards and procedures
10-22 relating to the licensing of molluscan shellfish processors under
10-23 this chapter;
10-24 (3) the content of the rules adopted to implement this
10-25 chapter;
10-26 (4) other such matters pertaining to oysters that the
11-1 involved agencies or the oyster industry may bring before the
11-2 council for consideration; and
11-3 (5) any other functions requested by the board in
11-4 implementing and administering this chapter.
11-5 (c) The council shall establish procedures for:
11-6 (1) meetings;
11-7 (2) submission, consideration, and resolution of
11-8 issues; and
11-9 (3) reporting the council's activities to the
11-10 legislature.
11-11 (d) The council shall adhere to all laws pertaining to
11-12 public meetings and shall post meeting dates and agenda in the
11-13 Texas Register.
11-14 (e) The council shall be composed of the following members:
11-15 (1) three members appointed by the Board of Health
11-16 from a list of nominations submitted individually by oyster dealers
11-17 who have been certified in Texas for at least twelve months of each
11-18 year of the three years preceding the nomination;
11-19 (2) two members appointed by the Board of Health from
11-20 a list of nominations submitted individually by oyster dealers who
11-21 have been certified in Texas for at least six months of each year
11-22 of the three years preceding the nomination;
11-23 (3) one representative appointed by the Chairman of
11-24 the Interstate Shellfish Sanitation Conference (I.S.S.C.);
11-25 (4) one member from the Texas A & M Sea Grant Program;
11-26 and
12-1 (5) one public member appointed by the governor.
12-2 (f) A person is not eligible for appointment as a public
12-3 member if the person or the person's spouse:
12-4 (1) is a harvester, processor, or wholesaler regulated
12-5 by this chapter;
12-6 (2) is employed by a harvester, processor, or
12-7 wholesaler regulated by this chapter;
12-8 (3) is a retailer of molluscan shellfish; or
12-9 (4) is employed by a retailer of molluscan shellfish.
12-10 (g) The council shall meet and elect a chairperson from its
12-11 members and shall conduct other such meetings as it may deem
12-12 necessary to deal with matters brought before the council.
12-13 (h) The council shall not provide compensation or
12-14 reimbursement of expenses to its members.
12-15 (i) Members will serve for a period of one year and may be
12-16 reappointed at the conclusion of their term.
12-17 (j) The Interstate Shellfish Sanitation Conference
12-18 representative and the Texas A&M Sea Grant representative shall be
12-19 appointed by their respective organization or agency.
12-20 SECTION 7. Title 3 of the Agriculture Code is amended by
12-21 adding Chapter 47 to read as follows:
12-22 Chapter 47. TEXAS OYSTER PROGRAM.
12-23 Sec. 47.001 PROMOTION AND ADVERTISEMENT (a) The department
12-24 may:
12-25 (1) promote and advertise the Texas Oyster Industry
12-26 including, but not limited to:
13-1 (A) use current market research to develop an
13-2 oyster marketing plan to increase consumption of Texas oysters;
13-3 (B) conduct a public relations campaign to
13-4 create a responsible and accurate image of the Texas Oyster
13-5 Industry; and
13-6 (C) provide information, education, and/or
13-7 training to wholesalers, retailers, and consumers on safe and
13-8 proper handling of oysters.
13-9 (b) The department, following guidance of the Oyster
13-10 Advisory Committee established in Section 47.002, may use a portion
13-11 of the Oyster Sales Fee funds provided for administrative purposes.
13-12 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
13-13 commissioner shall appoint an Oyster Advisory Committee to provide
13-14 guidance and direction on the programs and activities established
13-15 under this subchapter and expenditures of the funds appropriated
13-16 for this subchapter. Members of the advisory committee shall serve
13-17 without compensation or reimbursement of expenses.
13-18 (b) The advisory committee shall meet and elect a
13-19 chairperson from its members and shall conduct other such meeting
13-20 as it may deem necessary to provide guidance and direction to the
13-21 department.
13-22 (c) The advisory committee shall be composed of the
13-23 following nine members:
13-24 (1) six members appointed by the commissioner from a
13-25 list of nominations submitted individually by oyster dealers who
13-26 have been certified in Texas for a least twelve months of each year
14-1 of the three years preceding the nomination;
14-2 (2) two members appointed by the commissioner from a
14-3 list of nominations submitted individually by oyster dealers who
14-4 have been certified in Texas for at least six months of each year
14-5 of the three years preceding the nomination; and
14-6 (3) one member appointed by the commissioner
14-7 representing consumer interests.
14-8 (d) The advisory committee shall develop its own by-laws
14-9 under which it shall operate. These by-laws shall stipulate that
14-10 five members shall constitute a quorum sufficient to conduct
14-11 meetings and business of the advisory committee.
14-12 (e) an advisory committee member shall serve for a
14-13 three-year term with the terms of three members expiring August 31
14-14 of each year. For the first appointment upon adoption of this act,
14-15 the commissioner shall appoint two members from the list submitted
14-16 under (c)(1) and one member from the list submitted under (c)(2) or
14-17 the consumer representative to serve for periods of one year, two
14-18 years, and three years to establish the rotation.
14-19 (f) A person may continue to serve on the advisory committee
14-20 at the conclusion of his/her term if reappointed.
14-21 SECTION 8. Subchapter C, Chapter 87, Education Code, is
14-22 amended as follows:
14-23 SUBCHAPTER C. TEXAS A & M UNIVERSITY AT GALVESTON.
14-24 Sec. 87.201. Texas A & M University at Galveston; Role and
14-25 Mission. (a) Texas A&M University at Galveston is a special
14-26 purpose institution of higher education for undergraduate
15-1 instruction in marine and maritime studies in science, engineering,
15-2 and business and for research and public service related to the
15-3 general field of marine resources. The institution is under the
15-4 management and control of the board of regents of The Texas A&M
15-5 University System, with degrees offered under the name and
15-6 authority of Texas A&M University at College Station. The board of
15-7 regents of The Texas A&M University System shall have the authority
15-8 to designate Texas A&M University at Galveston as a branch of Texas
15-9 A&M University; however, such designation, if made, shall not
15-10 change the role and mission of Texas A&M University at Galveston as
15-11 specified in this section.
15-12 (b) Texas A&M University at Galveston shall be a research
15-13 institute supporting the marine sciences and oceanography programs
15-14 at Texas A&M University and The University of Texas at Austin.
15-15 Research endeavors benefitting the academic strength of Texas A&M
15-16 University and The University of Texas at Austin or the economic
15-17 strength of the State of Texas shall be conducted, with emphasis on
15-18 establishing and maintaining an internationally recognized research
15-19 institute to be named the Texas Institute of Oceanography. The
15-20 Texas Institute of Oceanography may also contract with other
15-21 institutions of higher education to provide research and other
15-22 related services. Texas A&M University at College Station and The
15-23 University of Texas at Austin are authorized to offer upper-level
15-24 and graduate courses in marine sciences and oceanography at the
15-25 Texas Institute of Oceanography that are supportive to their marine
15-26 sciences and oceanography academic programs. Funding for research
16-1 should be from private sources, competitively acquired sources, and
16-2 appropriated public funding.
16-3 (c) Within the established programs, and using funds and
16-4 grants provided in other specific legislation and/or obtained from
16-5 other sources, the Texas A&M University at Galveston, Marine
16-6 Biology Department, may support the expansion and production of
16-7 oysters from private oyster leases during the months of May through
16-8 October of each year and shall study the possible impacts of
16-9 conditions observed on public harvest outside this time period,
16-10 including but not limited to:
16-11 (1) the department may conduct studies to investigate
16-12 and provide information about oyster diseases and other concerns
16-13 which may affect the availability of oysters for harvest. These
16-14 studies shall consider the effects of natural environmental
16-15 conditions such as but not limited to salinity, temperature,
16-16 turbidity and other natural environmental conditions, as well as,
16-17 factors which may not be part of the natural environment such as
16-18 but not limited to chemical contamination, freshwater inflow
16-19 alterations, and ballast water discharges; and
16-20 (2) the department may conduct studies to investigate
16-21 and provide information about organisms which may be associated
16-22 with human illness which can be transmitted through the consumption
16-23 of oysters, particularly Vibrio parahaemolyticus and Vibrio
16-24 vulnificus. The studies shall consider factors such as but not
16-25 limited to natural occurrence, contamination, and effects of time,
16-26 temperature, and handling practices on the organisms.
17-1 SECTION 9. The importance of this legislation and the
17-2 crowded condition of the calendars in both houses create an
17-3 emergency and an imperative public necessity that the
17-4 constitutional rule requiring bills to be read on three several
17-5 days in each house be suspended, and this rule is hereby suspended,
17-6 and that this Act take effect and be in force from and after its
17-7 passage, and it is so enacted.