1-1 By: Bernsen S.B. No. 1685
1-2 (In the Senate - Filed March 12, 1999; March 15, 1999, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 19, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 4, Nays 0; April 19, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1685 By: Lucio
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation and promotion of the oyster industry in
1-11 this state.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter A, Chapter 431, Health and Safety
1-14 Code, is amended by adding Section 431.006 to read as follows:
1-15 Sec. 431.006. COMPLIANCE WITH OTHER LAW; MOLLUSCAN
1-16 SHELLFISH. A person who is subject to this chapter and who handles
1-17 molluscan shellfish, as that term is defined by Section 436.002,
1-18 shall comply with Section 436.105.
1-19 SECTION 2. Section 436.103, Health and Safety Code, is
1-20 amended to read as follows:
1-21 Sec. 436.103. FEE ON OYSTER SALES; PENALTIES. (a) The
1-22 first [A] certified shellfish dealer who handles, stores, packs,
1-23 labels, unloads at dockside, or holds oysters taken from the water
1-24 of this state shall pay the state [department] a fee of $1 for each
1-25 barrel of oysters processed by the certified shellfish dealer.
1-26 (b) For purposes of assessing the fee required by this
1-27 section, three 100-pound containers of oysters is the equivalent of
1-28 one barrel of oysters. A certified shellfish dealer may not pack
1-29 oysters in containers that, when packed, exceed 110 pounds in
1-30 weight. A dealer who violates this subsection is liable for a
1-31 penalty of $5 for each container that exceeds 110 pounds.
1-32 (c) A certified shellfish dealer shall pay a fee or penalty
1-33 imposed by Subsection (a) or (b) [this section] not later than the
1-34 20th [30th] day of the month following the month in which the
1-35 barrel of oysters was handled. A [certified shellfish] dealer who
1-36 fails to pay the fee or penalty in full within the prescribed
1-37 period is liable for the amount of the fee or penalty and an
1-38 additional [a] penalty of 10 percent of the amount of the fee or
1-39 penalty due. On certification by the comptroller that a fee is
1-40 past due, the [The] department may suspend, until the fee, penalty,
1-41 or additional penalty is paid, the shellfish certificate of a
1-42 certified shellfish dealer who fails to timely pay the fee,
1-43 penalty, or additional penalty in full. The department, on
1-44 certification from the comptroller that a certified shellfish
1-45 dealer has refused to pay a fee, penalty, or additional penalty on
1-46 written demand, may revoke the shellfish certificate of a certified
1-47 shellfish dealer who refuses to pay a fee, penalty, or additional
1-48 penalty [on written demand of the department].
1-49 (d) [(c)] The comptroller [department] shall collect
1-50 [deposit] fees and penalties [collected] under this section and may
1-51 adopt rules, forms, and procedures for submission of fees and
1-52 penalties under this section. Each month the comptroller shall
1-53 report to the department the fees and penalties that are submitted
1-54 to the comptroller.
1-55 (e) Before any other disposition of the fees and penalties
1-56 collected under this section is made, two percent of the amount of
1-57 the fees and penalties shall be deposited in the state treasury for
1-58 appropriation for the use of the comptroller in the administration
1-59 and enforcement of this section. The remainder of the fees and
1-60 penalties collected under this section shall be deposited to the
1-61 credit of the oyster sales account in the general revenue fund to
1-62 be allocated each year [quarter to the department] for
1-63 oyster-related activities, including:
1-64 (1) collecting bay water and shellfish meat samples;
2-1 (2) contracting for [water] sample analysis for
2-2 classification and opening or closing of oyster harvesting areas;
2-3 [(2) the study of organisms in oysters that are
2-4 harmful to consumers of oysters;]
2-5 (3) marking the boundaries of areas that are
2-6 designated open or closed under this subchapter [the education of
2-7 the public on health issues relating to oyster consumption];
2-8 (4) studying oyster diseases and other concerns
2-9 affecting the availability of oysters for harvest;
2-10 (5) studying organisms that may be associated with
2-11 human illness and that can be transmitted through the consumption
2-12 of oysters;
2-13 (6) promotion and advertising of the Texas oyster
2-14 industry by the Texas Department of Agriculture, including
2-15 information, education, and training to consumers on safe and
2-16 proper handling of oysters; and
2-17 (7) other oyster-related activities authorized or
2-18 required by this chapter [the sanitary handling of oysters at the
2-19 wholesale, retail, and consumer level; and]
2-20 [(5) the optional additional marking of the boundaries
2-21 of areas declared closed by the director].
2-22 (f) Subtitles A and B, Title 2, Tax Code, apply to the
2-23 comptroller's administration, collection, and enforcement of this
2-24 section to the same extent as if the fee imposed under this section
2-25 were a tax imposed under Title 2, Tax Code.
2-26 [(d) The department shall adopt rules, forms, and procedures
2-27 to obtain from a certified shellfish dealer required to pay fees
2-28 under this section information on the:]
2-29 [(1) location of the oysters harvested;]
2-30 [(2) identity of the harvesting boat;]
2-31 [(3) identity of the captain and the number of crew of
2-32 the harvesting boat; and]
2-33 [(4) identity of the receiving certified shellfish
2-34 dealer.]
2-35 SECTION 3. Subchapter H, Chapter 436, Health and Safety
2-36 Code, is amended by adding Sections 436.104 through 436.108 to read
2-37 as follows:
2-38 Sec. 436.104. OYSTER PROGRAM. (a) The department shall
2-39 conduct sanitary surveys, bay water and shellfish meat sampling,
2-40 and any other activities that are necessary to classify the bays
2-41 from which oysters are harvested from private leases or public
2-42 reefs and the director shall continue to designate those areas as
2-43 open areas as much as possible while protecting public health.
2-44 (b) The department shall, subject to reasonable and prudent
2-45 safety concerns, conduct sampling activities at the earliest
2-46 possible time following the designation as a closed area of an area
2-47 from which oysters are harvested from private leases or public
2-48 reefs:
2-49 (1) if a question exists about the closure, to confirm
2-50 the need for the closure; or
2-51 (2) if there is reason to believe that the sampling
2-52 will result in opening the area.
2-53 (c) In implementing the oyster program, the department shall
2-54 follow standards that are at least as stringent as the guidelines
2-55 adopted by the National Shellfish Sanitation Program. The
2-56 department's approach shall be consistent with the purpose and
2-57 intent of the National Shellfish Sanitation Program and the federal
2-58 Food and Drug Administration policy statements regarding the
2-59 consumption of raw molluscan shellfish.
2-60 Sec. 436.105. TEMPERATURE REQUIREMENTS. Molluscan shellfish
2-61 shall be refrigerated in air temperatures at or below 45 degrees
2-62 Fahrenheit at all times except during transfer from one storage
2-63 area or transportation vehicle to another. Except for an immediate
2-64 transfer, molluscan shellfish may not remain unrefrigerated during
2-65 transfer from one storage area or transportation vehicle to
2-66 another.
2-67 Sec. 436.106. TEMPERATURE ABUSE. If temperature abuse of
2-68 oysters associated with possible Vibrio parahaemolyticus illnesses
2-69 is identified at any point in the market chain from harvest to
3-1 consumer, the department may not designate a harvest area as a
3-2 closed area unless the temperature abuse does not appear to be the
3-3 possible cause of the illness.
3-4 Sec. 436.107. TEXAS OYSTER COUNCIL. (a) The Texas Oyster
3-5 Council is created.
3-6 (b) The council is composed of:
3-7 (1) two members appointed by the board from a list of
3-8 nominations submitted by the Texas Oyster Growers and Dealers
3-9 association;
3-10 (2) two members appointed by the board from a list of
3-11 oyster dealers who have held a shellfish certificate in this state
3-12 for not less than six months of each of the three years preceding
3-13 the nomination and who are certified at the time of appointment;
3-14 (3) one representative appointed by the chairman of
3-15 the Interstate Shellfish Sanitation Conference; and
3-16 (4) two consumer members appointed by the speaker of
3-17 the house of representatives.
3-18 (c) Members of the Texas Oyster Council serve one-year terms
3-19 expiring August 31 of each year and may be reappointed at the end
3-20 of a term.
3-21 (d) A member of the Texas Oyster Council may not receive
3-22 compensation for service on the council and may not be reimbursed
3-23 for expenses incurred by the member while conducting the business
3-24 of the council.
3-25 (e) A person is not eligible for appointment as a consumer
3-26 member of the Texas Oyster Council if the person or the person's
3-27 spouse:
3-28 (1) is a harvester, processor, or wholesaler regulated
3-29 under this chapter;
3-30 (2) is employed by a harvester, processor, or
3-31 wholesaler regulated under this chapter;
3-32 (3) is a retailer of molluscan shellfish; or
3-33 (4) is employed by a retailer of molluscan shellfish.
3-34 (f) The Texas Oyster Council shall elect a presiding officer
3-35 from among its members.
3-36 Sec. 436.108. POWERS AND DUTIES OF TEXAS OYSTER COUNCIL.
3-37 (a) The Texas Oyster Council shall:
3-38 (1) advise the board on the criteria used by the
3-39 director under Section 436.101 to designate growing areas as open
3-40 or closed areas;
3-41 (2) advise the board on the development of standards
3-42 and procedures relating to the licensing of molluscan shellfish
3-43 processors under this chapter;
3-44 (3) advise the board on the content of the rules
3-45 adopted to implement the provisions of this chapter relating to
3-46 molluscan shellfish;
3-47 (4) perform any other functions requested by the board
3-48 in implementing and administering the provisions of this chapter
3-49 relating to molluscan shellfish; and
3-50 (5) review information brought before the council
3-51 relating to molluscan shellfish.
3-52 (b) The Texas Oyster Council is entitled to:
3-53 (1) obtain information that is furnished to the
3-54 department or developed by the department as part of an
3-55 investigation of a food-borne illness that is suspected of being
3-56 related to molluscan shellfish, including:
3-57 (A) location and handling practices where
3-58 suspect food may have been served;
3-59 (B) product labeling and records;
3-60 (C) distribution agent, methods, and handling
3-61 practices;
3-62 (D) sources of product;
3-63 (E) sample collection and laboratory analysis;
3-64 and
3-65 (F) any other nonmedical information that may
3-66 aid in determining causes or routes of transmission of food-borne
3-67 illness or suspected food-borne illness; and
3-68 (2) review the information provided under Subdivision
3-69 (1) and report to the department on any matter of concern.
4-1 (c) The Texas Oyster Council may establish procedures for:
4-2 (1) meetings of the council;
4-3 (2) submission, consideration, and resolution of
4-4 issues before the council; and
4-5 (3) reporting relating to the council's activities.
4-6 (d) A member of the Texas Oyster Council who receives
4-7 information under Subsection (b) from confidential communications
4-8 or records, as identified by the department, may not disclose the
4-9 information outside of the council or the department. The
4-10 department, by providing to the council public information that is
4-11 confidential or otherwise excepted from public disclosure under
4-12 law, does not waive or affect the confidentiality of the
4-13 information for the purposes of state or federal law or waive the
4-14 right to assert exceptions to required disclosure of the
4-15 information.
4-16 (e) The Texas Oyster Council is subject to Chapter 551,
4-17 Government Code. The Texas Oyster Council is not required to
4-18 conduct an open meeting to deliberate confidential communications
4-19 and records provided under this section relating to the
4-20 investigation of a food-borne illness that is suspected of being
4-21 related to molluscan shellfish.
4-22 SECTION 4. Title 3, Agriculture Code, is amended by adding
4-23 Chapter 47 to read as follows:
4-24 CHAPTER 47. TEXAS OYSTER PROGRAM
4-25 Sec. 47.001. DUTIES. (a) The department may:
4-26 (1) promote and advertise the Texas oyster industry;
4-27 (2) use current market research to develop an oyster
4-28 marketing plan to increase consumption of Texas oysters;
4-29 (3) conduct a public relations campaign to create a
4-30 responsible and accurate image of the Texas oyster industry; and
4-31 (4) provide information, education, or training to
4-32 consumers on safe and proper handling of oysters.
4-33 (b) The department, in consultation with the advisory
4-34 committee appointed under Section 47.002, may use money
4-35 appropriated to the department to implement this chapter for
4-36 administrative expenses related to this chapter.
4-37 Sec. 47.002. OYSTER ADVISORY COMMITTEE. (a) The
4-38 commissioner shall appoint an Oyster Advisory Committee to provide
4-39 guidance and direction on the programs and activities established
4-40 under this chapter and expenditures of the money appropriated for
4-41 this chapter.
4-42 (b) A member of the advisory committee may not receive
4-43 compensation for service on the committee and may not be reimbursed
4-44 for expenses incurred while conducting the business of the advisory
4-45 committee.
4-46 (c) The advisory committee is composed of:
4-47 (1) six members appointed by the commissioner from a
4-48 list of nominations submitted individually by molluscan shellfish
4-49 dealers who have held a shellfish certificate issued under Chapter
4-50 436, Health and Safety Code, for not less than 12 months of each of
4-51 the three years preceding the nomination;
4-52 (2) two members appointed by the commissioner from a
4-53 list of nominations submitted individually by molluscan shellfish
4-54 dealers who have held a shellfish certificate issued under Chapter
4-55 436, Health and Safety Code, for not less than six months of each
4-56 of the three years preceding the nomination and who may not submit
4-57 a nomination under Subdivision (1); and
4-58 (3) one public member who represents consumer
4-59 interests appointed by the commissioner.
4-60 (d) The advisory committee shall meet and elect a presiding
4-61 officer from among its members and shall adopt bylaws for the
4-62 conduct of its activities. The bylaws must provide that five
4-63 members constitute a quorum sufficient to conduct meetings and
4-64 business of the advisory committee.
4-65 (e) Advisory committee members serve staggered three-year
4-66 terms, with the terms of three members expiring August 31 of each
4-67 year. A member of the committee may be reappointed.
4-68 SECTION 5. Subchapter C, Chapter 87, Education Code, is
4-69 amended by adding Section 87.207 to read as follows:
5-1 Sec. 87.207. MOLLUSCAN SHELLFISH PROGRAMS. (a) The marine
5-2 biology department of Texas A&M University at Galveston may:
5-3 (1) support the expansion and production of oysters
5-4 from private oyster leases during the months of May through October
5-5 of each year; and
5-6 (2) study the possible impacts of conditions observed
5-7 on public harvest outside that period.
5-8 (b) The marine biology department may investigate and
5-9 provide information about oyster diseases and other concerns that
5-10 may affect the availability of oysters for harvest. The
5-11 investigation shall consider the effects of natural environmental
5-12 conditions, including salinity, temperature, turbidity, and other
5-13 natural environmental conditions, and shall also consider factors
5-14 that may not be part of the natural environment, including chemical
5-15 contamination, freshwater inflow alterations, and ballast water
5-16 discharges.
5-17 (c) The marine biology department may investigate and
5-18 provide information about organisms that may be associated with
5-19 human illness that can be transmitted through the consumption of
5-20 oysters, particularly Vibrio parahaemolyticus and Vibrio
5-21 vulnificus. The investigation must consider factors such as
5-22 natural occurrence, contamination, and the effects of time,
5-23 temperature, and handling practices on the organisms.
5-24 SECTION 6. In making the initial appointments of the Oyster
5-25 Advisory Committee members under Section 47.002, Agriculture Code,
5-26 as added by this Act, the commissioner of agriculture shall
5-27 appoint:
5-28 (1) two members from the list submitted under
5-29 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
5-30 as added by this Act, and one member from the list submitted under
5-31 Subdivision (2), Subsection (c), Section 47.002, Agriculture Code,
5-32 as added by this Act, to serve a term expiring August 31, 2000;
5-33 (2) two members from the list submitted under
5-34 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
5-35 as added by this Act, and one member from the list submitted under
5-36 Subdivision (2), Subsection (c), Section 47.002, Agriculture Code,
5-37 as added by this Act, to serve a term expiring August 31, 2001; and
5-38 (3) two members from the list submitted under
5-39 Subdivision (1), Subsection (c), Section 47.002, Agriculture Code,
5-40 as added by this Act, and the public member appointed under
5-41 Subdivision (3), Subsection (c), Section 47.002, Agriculture Code,
5-42 as added by this Act, to serve a term expiring August 31, 2002.
5-43 SECTION 7. The importance of this legislation and the
5-44 crowded condition of the calendars in both houses create an
5-45 emergency and an imperative public necessity that the
5-46 constitutional rule requiring bills to be read on three several
5-47 days in each house be suspended, and this rule is hereby suspended,
5-48 and that this Act take effect and be in force from and after its
5-49 passage, and it is so enacted.
5-50 * * * * *