BILL ANALYSIS
C.S.H.B. 3373
By: Thimesch
Agriculture & Livestock
Committee Report (Substituted)
BACKGROUND AND PURPOSE
In 2011, the federal Food Safety Modernization Act (FSMA) was signed into law, with the FDA being given implementation authority. In the 85th Regular Session, the Texas Legislature passed H.B. 3227, which directed the Department of Agriculture (TDA) to implement one specific provision of FSMA, the produce safety rule. FSMA included specific criteria for which farms were covered and which were exempt. Farms that sell on average less than $25,000 of produce annually are fully exempt from the rule, and farms that sell less than $500,000 to consumers within 275 miles of the farm are only required to keep documentation of their exemption. TDA has used the authority granted to it by H.B. 3227 to issue regulations and undertake measures that go beyond the rule. TDA is conducting on-site visits on produce farms regardless of exemption status. These unwarranted visits cost farms up to $500 per day in fines if they refuse inspections. C.S.H.B. 3373 seeks to address this issue by revising provisions relating to TDA's role with respect to the rule in order to ensure that TDA does not overreach and use the authority granted to it as justification to conduct excessive investigative activities or impose additional or more burdensome requirements than those provided by applicable federal rules or standards.
CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS
C.S.H.B. 3373 amends the Agriculture Code to replace the specification that the Department of Agriculture (TDA) is the lead agency for the administration, implementation, and enforcement of, and education and training relating to, the FDA Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption or any successor federal produce safety rule or standard with a requirement for TDA to administer, implement, and enforce in Texas, and provide education and training relating to, those rules or standards. The bill establishes that provisions relating to TDA's coordination of produce safety do not authorize TDA to implement or enforce any other federal regulation. The bill clarifies TDA's authority to enter into certain agreements or memoranda of understanding under those provisions.
C.S.H.B. 3373 requires TDA to provide a farmer with the option to provide the information necessary to determine whether a farm is covered by, is not covered by, is exempt from, or meets the criteria for a qualified exemption from certain federal regulations by telephone call,
videoconference, or another remote method. The bill authorizes TDA, if a farmer chooses to provide the information using a remote method, to conduct an on-farm interview only after three failed attempts to conduct the remote interview or as a follow-up to a remote interview when the information provided is incomplete or insufficient.
C.S.H.B. 3373 prohibits TDA from using the authority granted by provisions relating to TDA's coordination of produce safety as justification to do the following:
· inquire about the amount of revenue generated by a farm more often than every three years after the date the farm establishes that it is not subject to the applicable federal rules or standards because it does not generate more than the threshold amount of revenue from the sale of produce to be a covered farm; or
· conduct further investigative activity after receiving documentation indicating that a farm generates less than the threshold amount of revenue from the sale of produce to be a covered farm under the applicable federal rules or standards.
This prohibition expressly does not prevent TDA from collecting data regarding the type of commodities grown by a farm and whether those commodities are covered produce under the applicable federal rules or standards.
C.S.H.B. 3373 prohibits TDA's rules from imposing additional or more burdensome requirements than those provided by the applicable federal rules or standards and prohibits TDA from doing the following:
· requiring registration of a farm that is not covered by, is exempt from, or meets the criteria for a qualified exemption from the federal rules or standards;
· without probable cause that the farm is violating an applicable law, conducting a physical inspection of a farm that is not covered by, is exempt from, or meets the criteria for a qualified exemption from the federal rules or standards; or
· creating a new or different standard that is not contained in the federal rules or standards or required under other law.
C.S.H.B. 3373 makes information collected by TDA for purposes of provisions relating to TDA's coordination of produce safety confidential and not subject to disclosure under state public information law. The bill authorizes TDA to use information collected for purposes of those provisions to determine whether farms are covered by, are not covered by, are exempt from, or meet the criteria for a qualified exemption from the applicable federal rules or standards.
EFFECTIVE DATE
On passage, or, if the bill does not receive the necessary vote, September 1, 2023.
COMPARISON OF ORIGINAL TO SUBSTITUTE
While C.S.H.B. 3373 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.
Whereas the introduced removed education and training relating to the FDA Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption or any successor federal produce safety rule or standard from the scope of TDA's duties relating to those standards or rules, the substitute does not make that removal and requires TDA to provide such education and training.
The substitute includes provisions absent in the introduced that do the following:
· require TDA to provide a farmer with the option to provide the information necessary to determine whether a farm is covered by, is not covered by, is exempt from, or meets the
criteria for a qualified exemption from certain federal regulations by telephone call, videoconference, or another remote method; and
· if a farmer chooses to provide the information using a remote method, authorize TDA to conduct an on-farm interview only after three failed attempts to conduct the remote interview or as a follow-up to a remote interview when the information provided is incomplete or insufficient.
The substitute omits provisions present in the introduced that did the following regarding the actions TDA may take with respect to a farm that is not subject to the applicable federal rules or standards because the farm does not generate more than the threshold amount of revenue from the sale of produce to be a covered farm:
· prohibited TDA from using the authority granted by provisions relating to TDA's coordination of produce safety as justification to physically enter the farm;
· established that TDA is limited to inquiring about whether the farm generates more than the threshold amount of revenue from the sale of produce to be a covered farm; and
· prohibited TDA from conducting further investigative activity after receiving documentation indicating the farm generates less than that threshold amount.
The substitute includes provisions absent in the introduced that do the following instead:
· prohibit TDA from using the authority granted by provisions relating to TDA's coordination of produce safety as justification to do the following:
o inquire about the amount of revenue generated by a farm more often than every three years after the date the farm establishes that it is not subject to the applicable federal rules or standards because it does not generate more than that threshold amount; or
o conduct further investigative activity after receiving documentation indicating that a farm generates less than that threshold amount under the applicable federal rules or standards; and
· establish that this prohibition expressly does not prevent TDA from collecting data regarding the type of commodities grown by a farm and whether those commodities are covered produce under the applicable federal rules or standards.
With regard to the prohibition against TDA creating a new or different standard that is not contained in the federal rules or standards:
· the substitute omits a specification included in the introduced that such a new or different standard includes a standard for imposing penalties; and
· the substitute includes as a prohibited new or different standard a standard that is not required under other law, whereas the introduced did not include such.
The substitute includes provisions absent in the introduced that do the following:
· make information collected by TDA for purposes of provisions relating to TDA's coordination of produce safety confidential and not subject to disclosure under state public information law; and
· authorize TDA to use information collected for purposes of such provisions to determine whether farms are covered by, are not covered by, are exempt from, or meet the criteria for a qualified exemption from the applicable federal rules or standards.