HBA-MPM C.S.H.B. 1171 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1171 By: Chisum Environmental Regulation 3/19/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE The Texas Radiation Control Act, enacted in 1961 and recodified in 1989, establishes the regulatory framework and authority for the state agencies that regulate sources of radiation, encompassing the possession, use, and disposal of such sources. H.B. 1171 adds provisions which further regulatory enforcement. It provides exemptions, thus giving the regulatory programs flexibility in licensing new technologies in the radiation field, and defines "radiation" to include radiation devices that have energy emissions similar to those that come from lasers but are not "stimulated" emissions. This bill also includes administrative penalties, which are to be deposited in the Radiation and Perpetual Care Fund. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 2 (Section 401.108, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 401.003(17), Health and Safety Code, to provide that emission, rather than "stimulated" emission, of radiation from an electronic device to energy density levels that could reasonably cause bodily harm is one of the definitions of "radiation." SECTION 2. Amends Sections 401.106, 401.108, and 401.110, Health and Safety Code, as follows: Sec. 401.106. New title: EXEMPTION FROM LICENSING OR REGISTRATION REQUIREMENTS OR FROM APPLICATION OF RULE. (a) Makes no changes. (b) Authorizes the Texas Department of Health (department) or Texas Natural Resource Conservation Commission (commission), as applicable, to exempt a source of radiation or a kind of use or user from the application of a rule adopted by the department or commission if it is determined that the exemption is not prohibited by law and will not result in a significant risk to public health and safety and the environment. Sec. 401.108. FINANCIAL QUALIFICATIONS. (a) Requires the applicant to demonstrate to the commission, rather than the issuing agency, that the applicant is financially qualified to conduct the licensed activity, including any required decontamination, decommissioning, reclamation, and disposal, before a license is issued or renewed by the commission, rather than by the department or commission. Authorizes the Texas Board of Health (board), by rule, to require an applicant to demonstrate to the department that the applicant is financially qualified to conduct the licensed activity, including any required decontamination, decommissioning, reclamation, and disposal, before the department issues or renews a license. (b) Requires a license holder to submit to the department or commission, as appropriate, rather than to the issuing agency, at intervals required by board or commission rules, rather than the issuing agency rules, or the license, proof of the holder's financial qualifications. (c) Deletes reference to Subchapter G (Special Provisions Concerning By-Product Material), Chapter 401 (Radioactive Materials and Other Sources of Radiation), Health and Safety Code, as one of those under which the commission is required to reevaluate every five years the qualifications and security provided by a license holder. Sec. 401.110. DETERMINATION OF LICENSE. Includes financial qualifications as one of the aspects of an applicant's or license holder's background the department or commission may consider in making a determination whether to grant, deny, amend, renew, revoke, suspend, or restrict a license or registration. SECTION 3. Amends Section 401.305(b), Health and Safety Code, to include an administrative penalty collected by the department under Sections 401.384-401.390 that the department or commission is required to deposit to the credit of the fund money and security received under this chapter. Sections 401.384-401.390 refer to the following, respectively: Administrative Penalty, Preliminary Report of Violation, Notice of Preliminary Report, Consent to Penalty, Hearing and Decision, Disposition of Penalty; Judicial Review, and Remitting Penalty Payments; Releasing Bonds. SECTION 4. Amends Section 401.381(a), Health and Safety Code, to provide that a person who causes, suffers, allows, or permits a violation of, rather than violates, this chapter, a department rule or order, or a license or registration condition is subject to a civil penalty. SECTION 5. Amends Section 401.384(a), Health and Safety Code, to change the existing reference from a "civil" penalty to an "administrative" penalty so that the text of this section conforms to its title (Administrative Penalty). Specifies that such penalties are provided by this section and Sections 401.385-401.390, rather than 401.385-401.391 (Section 401.391 (Local Government Access to Records; Penalty), regarding civil penalties paid by a person who denies a local government access to records, was repealed by Acts 1997, 75th Legislature) and apply to a person who causes, suffers, allows, or permits a violation of, rather than violates, a provision of this chapter. SECTION 6. Amends Section 401.385, Health and Safety Code, to authorize the department to issue a preliminary report recommending that an administrative penalty, rather than civil penalty, under Section 401.384 (Administrative Penalty) be imposed if the department, after an investigation, concludes that a violation relating to an activity under its jurisdiction has occurred. SECTION 7. Amends Sections 401.388(d) and (f), Health and Safety Code, to make conforming changes. SECTION 8. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 9. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. modifies the original in SECTION 2 by amending Section 401.106 to authorize the department or the commission, as applicable, to exempt a source of radiation or kind of use or user from the application of a rule adopted by the respective entity if it is determined that the exemption is not prohibited by law and will not result in a significant risk, rather than an undue hazard, to public health and safety and the environment, thereby conforming the language in Subsection (b) to that in Subsection (a). The substitute modifies the original bill by amending Section 401.108, Health and Safety Code to require the applicant to demonstrate to the commission, rather than the issuing agency, that the applicant is financially qualified to conduct the licensed activity, including any required contamination, decommissioning, reclamation, and disposal, before a license is issued or renewed by the commission, rather than by the department or commission. Authorizes the Texas Board of Health, by rule, to require an applicant to demonstrate to the department that the applicant is financially qualified to conduct the licensed activity, including any required decontamination, decommissioning, reclamation, and disposal, before the department issues or renews a license. No rulemaking authority was granted in the original. The substitute modifies the original by amending Section 401.108 to require a license holder to submit to the department or commission, as appropriate, rather than to the issuing agency, at intervals required by board or commission rules, rather than the issuing agency rules, or the license, proof of the holder's financial qualifications. Section 401.108 in the substitute also deletes reference to Subchapter G, Chapter 401, Health and Safety Code, as one of those under which the commission is required to reevaluate every five years the qualifications and security provided by a license holder. The substitute amends Section 401.110 by adding the act of renewing, in addition to other actions, that the department or commission may do with respect to a license or registration. The original bill repealed Section 401.108. The substitute modifies the original in SECTION 3 by amending Section 401.305(b), Health and Safety Code, to specify that the penalty under this section is collected by the department, clarifying that only the department may collect these funds.