SRC-MWN S.B. 1045 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 1045
77R4712 JRD-DBy: Moncrief
Business & Commerce
4/9/2001
As Filed


DIGEST AND PURPOSE 

Currently, the Texas Department of Health (TDH) is required to refer an
alleged violation of federal law to the United States Consumer Product
Safety Commission, creating delay in corrective action. As proposed, S.B.
1045 clarifies the registration process for manufacturers and other
non-chemical consumer products, and provides TDH with detention authority
for a violation of the statute or rules. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Board of Health in
SECTION 2 (Section 501.002, Health and Safety Code); SECTION 3 (Section
501.021, Health and Safety Code); SECTION 6 (Section 501.0231, Section
501.0232, and Section 501.0233, Health and Safety Code); and SECTION 9
(Section 501.026, Health and Safety Code) of this bill. 

SECTION BY SECTION ANALYSIS

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

SECTION 2. Amends Sections 501.002(a) and (d), Health and Safety Code, to
redefine "hazardous substance." Provides that a substance or article is
extremely flammable, flammable, or combustible if it is defined as
extremely flammable, flammable, or combustible by rule of the Texas Board
of Health (board). Requires the board, unless the board determines that the
health, safety, and welfare of persons in this state requires a different
definition, to define the terms as they are defined by the Federal
Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), as amended, and
by federal regulations adopted under this Act. Provides that until the
board adopts a different definition, the terms each have the meaning
assigned by the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
seq.) and by federal regulations adopted under that Act, as of September 1,
2001. Deletes text regarding a substance being flammable if it has a flash
point of 80 degrees. 

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

Sec. 501.021. New heading: FLAMMABILITY STANDARDS; DETERMINATION OF
FLAMMABILITY. Requires the board by rule to establish flammability
standards for articles described by Subsection (a). Requires the standards,
unless the board determines that the health, safety, and welfare of persons
in this state requires a different standard, to conform to standards
prescribed by federal regulations adopted under the federal Flammable
Fabrics Act (15 U.S.C. Section 1191 et seq.), as amended, the Federal
Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), as amended , and
the federal Consumer Product Safety Act (15 U.S.C. Section 2051 et seq.),
as amended. Provides that until the board adopts different standards, the
flammability standards for articles described by Subsection (a) are the
standards prescribed by federal regulations adopted under the federal
Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.), the Federal
Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), and the federal
Consumer Product Safety Act (15 U.S.C. Section 2051 et seq.), as of
September 1, 2001. Authorizes the Texas Department of Health (department)
to obtain  samples of articles described by Subsection (a) and, rather than
shall, determine the flammability of the, rather than those, articles for
compliance with applicable standards established under this section. 

SECTION 4. Amends Section 501.022(a), Health and Safety Code, to require
the board by rule to designate as a banned hazardous substance any article,
including, rather than of, clothing intended for the use of children, that
is not properly packaged or that does not comply with applicable
flammability standards established by the board. 

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

Sec. 501.023. GENERAL LABELING AND PACKAGING REQUIREMENTS. 

SECTION 6. Amends Chapter 501B, Health and Safety Code, by adding Sections
501.0231, 501.0232, and 501.0233, as follows: 

Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES. Requires toys or games
intended for use by children, including the parts of those toys or games,
to be labeled in the manner required by rule of the board. Requires the
board's rules under this subsection, unless the board determines that the
health, safety, and welfare of persons in this state requires a deviation
from federal standards, to be consistent with federal guidelines and
regulations adopted under the Federal Hazardous Substances Act (15 U.S.C.
Section 1261 et seq.), as amended. Requires the toys, games, and parts,
until the board adopts rules under this subsection, to be labeled in the
manner required by federal guidelines and regulations adopted under the
Federal Hazardous Substances Act (15 U.S.C. Section 1261 et seq.) as of
September 1, 2001. Requires certain items and games and toys that contain
those items to be labeled in the manner required by rule of the board.
Requires the board's rules under this subsection, unless the board
determines that the health, safety, and welfare of persons in this state
requires a deviation from federal standards, to be consistent with federal
guidelines and regulations adopted under the Federal Hazardous Substances
Act (15 U.S.C. Section 1261 et seq.), as amended. Provides that until the
board adopts rules under this subsection, certain items that contain
certain items are required to be labeled in the manner required by federal
guidelines and regulations adopted under the Federal Hazardous Substances
Act (15 U.S.C. Section 1261 et seq.) as of September 1, 2001. 

Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART MATERIALS. Requires art
materials to be reviewed by a toxicologist. Requires art materials to be
labeled in the manner required by rule of the board. Requires the board's
rules under this subsection, unless the board determines that the health,
safety, and welfare of persons in this state requires a deviation from
federal standards, to be consistent with the Federal Hazardous Substances
Act (15 U.S.C. Section 1261 et seq.), as amended, and federal regulations
adopted under that Act. Requires art materials, until the board adopts
rules under this subsection, to be labeled in the manner required by the
Federal Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), and
federal regulations adopted under that Act, as of September 1, 2001. 

Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Requires hazardous
substances to be packaged in the manner required by special packaging
ruling adopted by the board. Requires the board's rules under this section,
unless the board determines that the health, safety, and welfare of persons
in this state requires a deviation from federal standards, to be consistent
with federal special packaging regulations adopted under the federal Poison
Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.), as
amended. Requires hazardous substances, until the board adopts rules under
this section, to be packaged in the manner required by federal special
packaging regulations adopted under the federal Poison Prevention Packaging
Act of 1970 (15 U.S.C. Section 1471 et seq.), as of September 1, 2001. 
 
SECTION 7. Amends Section 501.024, Health and Safety Code, to require a
person who manufactures, imports, or repacks a hazardous substance that is
distributed in this state or who distributes a hazardous substance in this
state under the person's private brand name to have on file with the
department a registration statement as provided by this section. Requires
the board by rule to detail the registration requirements and prescribe the
contents of the registration statement. Requires the person to file the
registration statement with the department before beginning business in
this state as a manufacturer, importer, repacker, or distributor of a
hazardous substance, and in each succeeding year that the person continues
the business in this state, not later than the anniversary of the initial
filing date, rather than September 1 of each year after. Requires the
initial registration statement and each annual registration statement to be
accompanied by a fee prescribed by the board. Deletes text setting the fee
at $150. Authorizes the department, after notice and hearing, to refuse to
register or to cancel, revoke, or suspend the registration of a person who
manufactures, imports, repacks, or distributes a hazardous substance of the
person fails to comply with the requirements of this chapter, rather than
make timely payment of the fee. Provides that a hazardous substance is
subject to seizure and disposition under Section 501.033 if the person who
manufactures, imports, repacks, or distributes the hazardous substance does
not, after notice by the department, register with the department and make
timely payment of the fee under this section. Makes a conforming change. 

SECTION 8. Amends Section 501.025, Health and Safety Code, as follows:

Sec. 501.025. RULES. Authorizes the board to adopt reasonable rules
necessary for the efficient administration and enforcement of this chapter.
Requires the rules, unless the board determines that the health, safety,
and welfare of persons in this state requires a deviation from federal
regulations, to conform with regulations adopted under the Federal
Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), as amended, the
federal Consumer Product Safety Act (15 U.S.C. Section 2051 et seq.), as
amended, the federal Flammable Fabrics Act (15 U.S.C. Section 1191 et
seq.), as amended, and the federal Poison Prevention Packaging Act of 1970
(15 U.S.C. Section 1471 et seq.) as amended, as applicable. 
 
SECTION 9. Amends Chapter 501B, Health and Safety Code, by adding Section
501.026, as follows: 

Sec. 501.026. FEES. Requires the board by rule to set reasonable
registration fees in an amount designed to recover not more than the costs
to the department of administering, monitoring compliance with, enforcing,
and conducting tests under this chapter. 

SECTION 10. Amends Section 501.031(b), Health and Safety Code, to authorize
an officer, employee, or agent of the department to obtain samples of any
materials, packaging, labeling, or finished product. Deletes text regarding
officer, employee, or agent paying for the sample. Makes a conforming
change. 

SECTION 11. Amends Section 501.033(b), Health and Safety Code, to require
the department to petition a district court of Travis County or of the
county in which the article is located to authorize the destruction of the
article. Makes a conforming change. 

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 that is to be distributed in
this state or otherwise distributed in this state without complying with
Section 501.024. Prohibits a person from packaging a hazardous substance in
a new or reused food, drug, or cosmetic container that is identifiable as a
food, drug, or cosmetic container by its labeling or other identification. 

SECTION 13. Amends Sections 501.035(a) and (b), Health and Safety Code, to
delete text regarding intentionally, knowingly, or recklessly violating
this chapter. Deletes text regarding Class B misdemeanor. 

 SECTION 14. Amends Chapter 501C, Health and Safety Code, by adding
Sections 501.036 and 501.037, as follows: 

Sec. 501.036. INJUNCTION. Authorizes the commissioner of health
(commissioner), if it appears that a person has violated, is violating, or
is threatening to violate this chapter or a rule adopted or order issued
under this chapter, to request the attorney general or a district, county,
or city attorney of the county or municipality in which the violation has
occurred, is occurring, or may occur to institute a civil suit for certain
conditions. Provides that venue for a suit brought under this section is in
the county or municipality in which the violation occurred or in Travis
County. Authorizes the commissioner and either the attorney general or the
district, county, or city attorney, as appropriate, to each recover from
the violator reasonable expenses incurred in obtaining injunctive relief
under this section, including investigative costs, court costs, reasonable
attorney's fees, witness fees, and deposition expenses. Authorizes expenses
recovered by the commissioner to be appropriated only to the department to
administer and enforce this chapter. Authorizes expenses recovered by the
attorney general to be appropriated only to the attorney general. 

Sec. 501.037. RECALL ORDERS. Authorizes the commissioner, in conjunction
with the detention of an article under Section 501.033, to order that a
hazardous substance be recalled from commerce. Authorizes the
commissioner's recall order to require the articles to be removed to one or
more secure areas approved by the commissioner or an authorized agent of
the commissioner. Requires the recall order to be in writing and signed by
the commissioner. Authorizes the recall order to be issued before or in
conjunction with the affixing of the tag or other appropriate marking as
provided by Section 501.033. Provides that the recall order is effective
until the order meets certain conditions. Requires the claimant of the
articles or the claimant's agent to pay the costs of the removal and
storage of the articles removed. Authorizes the commissioner, if the
claimant or the claimant's agent does not implement the recall order in a
timely manner, to provide for the recall of the articles. Requires the
costs of the recall to be assessed against the claimant of the articles or
the claimant's agent. Authorizes the commissioner to request the attorney
general to bring an action in a district court of Travis County to recover
costs of the recall. Authorizes the court, in a judgement in favor of the
state, to award costs, attorney's fees, and court costs related to the
recall together with interest on those costs from the time an expense was
incurred through the date the department is reimbursed. 

SECTION 15. Effective date: September 1, 2001. 

SECTION 16. Makes application of this Act prospective.