SRC-AXB S.B. 1533 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 1533
76R3428  JRD-FBy: Carona
State Affairs
4/7/1999
As Filed


DIGEST 

Since its enaction in 1972, the Texas Hazardous Substances Act has not been
updated.  When the Texas Department of Health (TDH) discovers hazardous
consumer products on the market, it cannot stop distribution, or proceed
with corrective measures from the products' manufacturers.  Rather, in
TDH's effort to prevent distribution of hazardous materials, it is required
to refer violations to the U.S. Consumer Product Safety Commission for
investigation.  However, delays in federal enforcement allow hazardous
products to remain on the market.  S.B. 1533 authorizes the Texas Board of
Health to adopt rules, provide penalties, and enforce various standards
regarding hazardous and flammable substances. 

PURPOSE

As proposed, S.B. 1533 clarifies and expands the Texas Department of Health
and the Texas Board of Health's authority to regulate hazardous substances. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Texas Board of Health in SECTIONS 2,
3, 6, 8, and 9 (Sections 501.002(d), 501.021(b), 501.0233, 501.025, and
501.026(a), Government Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 501.001, Health and Safety Code, to define
"commissioner" and redefine "misbranded hazardous substance."  Makes
conforming changes. 

SECTION 2.  Amends Sections 501.002(a) and (b), Health and Safety Code, to
provide that a hazardous substance is extremely flammable and combustible.
Authorizes the Texas Board of Health (TBH), by rule, to determine a
substance or article's flammability, and requires TBH to use a certain
flammability definition until TBH adopts a different definition.  Deletes
an existing flammability definition.  

SECTION 3.  Amends Section 501.021, Health and Safety Code, as follows:

Sec.  501.021.  New heading:  FLAMMABILITY STANDARDS; DETERMINATION OF
FLAMMABILITY.  Requires TBH, by rule, to establish flammability standards
which conform to certain federal regulations as of September 1, 1999, until
TBH adopts different standards.  Authorizes the Texas Department of Health
(TDH) to obtain certain samples to determine their flammability and
applicability to established standards.  Makes conforming changes. 

SECTION 4.  Amends Section 501.022(a), Health and Safety Code, to specify
that TBH is required to ban improperly packaged children's clothing.   

SECTION 5.  Amends the heading for Section 501.023, Health and Safety Code,
as follows: 

Sec.  501.023.  New heading:  GENERAL LABELING AND PACKAGING REQUIREMENTS.  
 
SECTION 6.  Amends Chapter 501B, Health and Safety Code, by adding Sections
501.0231501.0233, as follows: 

Sec.  501.0231. LABELING OF CERTAIN TOYS AND GAMES.  Requires children's
toys and game, latex balloons, small balls, marbles and any toy that
contains these components, to be labeled according to TBH rule, and
requires rule consistency with certain federal guidelines until TBH adopts
rules, as of September 1, 1999. 

Sec.  501.0232.  REVIEW AND LABELING OF HAZARDOUS ART MATERIALS. Requires a
toxicologist to review art materials.  Makes conforming changes. 

Sec.  501.0233.  PACKAGING OF HAZARDOUS SUBSTANCES.  Authorizes TBH to
adopt special packaging rules.  Makes conforming changes. 

SECTION 7.  Amends Section 501.024, Health and Safety Code, to require a
person who imports, or conducts other business with a  hazardous substance
under the person's private brand name, to file a registration statement
with TDH.  Requires TBH to detail the registration requirements. Requires
the person to file the registration annually, by the anniversary of the
initial filing.  Provides that TBH prescribes registration fees.
Authorizes TDH to refuse registration for a person who fails to comply with
requirements, rather than a person who fails to make timely payment of the
fee. Subjects a hazardous substance to seizure if the person responsible
for the substance fails to register and pay a fee, after being notified by
TDH.  Makes conforming changes. 

SECTION 8.  Amends Section 501.025, Health and Safety Code, to authorize
TBH to adopt rules for administration of this chapter.  Requires the rules
to conform with federal regulations, and provides an exception. 

SECTION 9.  Amends Chapter 501B, Health and Safety Code, by adding Section
501.026, as follows: 

Sec.  501.026.  FEES.  Authorizes TBH, by rule, to set reasonable
registration fees, and requires the fees to be deposited to a dedicated
account in the general revenue fund.  Limits the appropriation of these
funds to TDH to implement this chapter. 

SECTION 10.  Amends Section 501.031(b), Health and Safety Code, to
authorizes certain TDH authorities to obtain samples of any finished
product.  Deletes a provision requiring payment for a sample. 

SECTION 11.  Amends Section 501.033(b), Health and Safety Code, to require
TDH to petition a district court of Travis County to authorize destruction
of an article.  Makes conforming changes. 

SECTION 12.  Amends Section 501.034, Health and Safety Code, by adding
Subsections (g) and (h), to prohibit a person from manufacturing,
importing, or repacking a hazardous substance without complying with
Section 501.024.  Prohibits a person from packaging a hazardous substance
in a food, drug, or cosmetic container, that is identified as such a
product.   

SECTION 13.  Amends Sections 501.035(a) and (b), Health and Safety Code, to
delete text regarding violations, effectively clarifying that any offense
under this section a Class A misdemeanor. 

SECTION 14.  Amends Chapter 501C, Health and Safety Code, by adding
Sections 501.036501.042, as follows: 

Sec.  501.036.  INJUNCTION.  Authorizes the commissioner of public health
(commissioner) to request certain authorities to institute a civil suit for
certain orders including directing compliance, temporary injunction, and a
restraining order.  Prescribes the venue for a suit under this section.
Authorizes certain authorities to recover certain expenses from the
violator, and sets forth appropriation requirements for the recovered
expenses. 

 Sec.  501.037.  RECALL ORDERS.  Authorizes the commissioner to order a
recall of a hazardous substance, and sets forth requirements of the recall
order.  Authorizes the recall order's issuance prior to affixing certain
markings as provided by Section 501.033.  Provides that the recall order is
effective until it expires, is withdrawn, or reversed.  Requires the
hazardous substance claimant to pay certain costs.  Authorizes the
commissioner to recall articles and assess costs to the claimant of a
hazardous substance who fails to implement a recall order.  Authorizes the
commissioner to request the attorney general to bring an action to recover
recall costs, and specifies the award. 

Sec.  501.038.  ADMINISTRATIVE PENALTY.  Authorizes TDH to assess a penalty
against a violator of this chapter.  Sets forth required considerations for
TDH in determining the penalty amount.  Prohibits the penalty from
exceeding $25,000 per day.  Provides that a penalty proceeding is a
contested case under Chapter 2001, Government Code. 

Sec.  501.039.  ADMINISTRATIVE PENALTY; NOTICE; REQUEST FOR HEARING.
Requires TDH to give written notice to an alleged violator, and sets forth
notification requirements.  Authorizes the alleged violator to accept TDH's
determination, or to make a written request for a hearing, by the 20th day
after receipt of notification.  Requires a person who accepts TDH's
determination to pay the proposed penalty. 

Sec.  501.040.  ADMINISTRATIVE PENALTY:  HEARING; ORDER.  Sets forth TDH
requirements if a person requests a hearing.  Requires the hearings
examiner to promptly issue a certain proposal and recommendation, if the
hearings examiner determines that a penalty is warranted.  Authorizes the
commissioner or a designee to determine that a violation has, or has not
occurred, based on the hearings examiner's facts, conclusions, and
recommendations. 

Sec.  501.041.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW; REFUND.  Requires TDH to give notice to the person affected by the
order, and sets forth notification requirements.  Sets forth a deadline and
requirements for a person who is served notification, and authorizes this
person to take certain actions to stay enforcement of the penalty.
Authorizes TDH to file a contest to an affidavit, sets forth requirements
for the court regarding the affidavit, and provides that the affidavit
filer is responsible for proving inability to pay a penalty.  Authorizes
TDH to refer to the attorney general for collection of the penalty.  Sets
forth provisions for a judicial review of an order issued under Section
501.040, Health and Safety Code.  Sets forth court procedures concerning
determination of a violation and order of a penalty payment. Sets forth
proceedings following a final judgment of the court. 

Sec.  501.042.  RECOVERY OF COSTS.  Authorizes TDH to assess reasonable
fees against a person whose registration is denied, suspended, or revoked
as a result of an administrative hearing, or if penalties are assessed
against that person.  Requires the person to pay the fees by a certain
deadline.  Authorizes the referral of the matter to the attorney general
for the collection of fees.  Authorizes the attorney general to recover
reasonable expenses and costs from a person found liable for the
administrative penalty.  Describes "reasonable expenses and costs."  Sets
forth appropriation requirements regarding recovered expenses under this
section. 

SECTION 15.  Effective date:  September 1, 1999.

SECTION 16.  Makes application of this Act prospective.

SECTION 17.  Emergency clause.