1-1 By: Chisum (Senate Sponsor - Carona) H.B. No. 1099
1-2 (In the Senate - Received from the House May 4, 2001;
1-3 May 7, 2001, read first time and referred to Committee on Health
1-4 and Human Services; May 11, 2001, reported favorably by the
1-5 following vote: Yeas 7, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to regulation of radioactive materials and other sources
1-9 of radiation.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 401.003(17), Health and Safety Code, is
1-12 amended to read as follows:
1-13 (17) "Radiation" means one or more of the following:
1-14 (A) gamma-rays and X-rays, alpha and beta
1-15 particles, and other atomic or nuclear particles or rays;
1-16 (B) [stimulated] emission of radiation from an
1-17 electronic device to energy density levels that could reasonably
1-18 cause bodily harm; or
1-19 (C) sonic, ultrasonic, or infrasonic waves
1-20 emitted from an electronic device or resulting from the operation
1-21 of an electronic circuit in an electronic device in the energy
1-22 range to reasonably cause detectable bodily harm.
1-23 SECTION 2. Sections 401.108 and 401.110, Health and Safety
1-24 Code, are amended to read as follows:
1-25 Sec. 401.108. FINANCIAL QUALIFICATIONS. (a) Before a
1-26 license is issued or renewed by the [department or] commission, the
1-27 applicant shall demonstrate to the commission [issuing agency] that
1-28 the applicant is financially qualified to conduct the licensed
1-29 activity, including any required decontamination, decommissioning,
1-30 reclamation, and disposal. The board by rule shall require an
1-31 applicant to demonstrate to the department that the applicant is
1-32 financially qualified to conduct the licensed activity, including
1-33 any required decontamination, decommissioning, reclamation, and
1-34 disposal, before the department issues or renews a license.
1-35 (b) A license holder shall submit to the department or
1-36 commission, as appropriate [issuing agency], at intervals required
1-37 by board or commission [issuing agency] rules or the license, proof
1-38 of the license holder's financial qualifications.
1-39 (c) The department or commission shall reevaluate every five
1-40 years the qualifications and security provided by a license holder
1-41 under Subchapter F or Subchapter G. The reevaluation may coincide
1-42 with license renewal procedures if renewal and reevaluation occur
1-43 in the same year.
1-44 Sec. 401.110. DETERMINATION ON LICENSE. In making a
1-45 determination whether to grant, deny, amend, renew, revoke,
1-46 suspend, or restrict a license or registration, the department or
1-47 commission may consider those aspects of an applicant's or license
1-48 holder's background that bear materially on the ability to fulfill
1-49 the obligations of licensure, including technical competence,
1-50 financial qualifications, and the applicant's or license holder's
1-51 record in areas involving radiation.
1-52 SECTION 3. Section 401.301, Health and Safety Code, is
1-53 amended by adding Subsections (d) and (e) to read as follows:
1-54 (d) The department may require that each person who holds a
1-55 specific license issued by the department annually pay to the
1-56 department an additional five percent of the appropriate annual fee
1-57 set under Subsection (b). Fees collected under this subsection
1-58 shall be deposited to the credit of the radiation and perpetual
1-59 care fund. The fees are not refundable.
1-60 (e) The department shall suspend assessment of a fee imposed
1-61 under Subsection (d) if the amount of fees collected under that
1-62 subsection reaches $500,000. If the balance of fees collected
1-63 subsequently is reduced to $350,000 or less, the department shall
1-64 reinstitute assessment of the fee until the balance reaches
2-1 $500,000.
2-2 SECTION 4. Section 401.305, Health and Safety Code, is
2-3 amended by amending Subsection (b) and adding Subsections (e), (f),
2-4 and (g) to read as follows:
2-5 (b) The department and commission each shall deposit to the
2-6 credit of the fund money and security they receive under this
2-7 chapter, including an administrative penalty collected by the
2-8 department under Sections 401.384-401.390 but excluding [other
2-9 than] fees collected under Sections 401.301(a)-(c) [401.301] and
2-10 401.302. Interest earned on money in the fund shall be credited to
2-11 the fund.
2-12 (e) The department may use money in the fund to pay for
2-13 measures:
2-14 (1) to prevent or mitigate the adverse effects of
2-15 abandonment of radioactive materials, default on a lawful
2-16 obligation, insolvency, or other inability by the holder of a
2-17 license issued by the department to meet the requirements of this
2-18 chapter or department rules; and
2-19 (2) to assure the protection of the public health and
2-20 safety and the environment from the adverse effects of ionizing
2-21 radiation.
2-22 (f) The department may provide, by the terms of a contract
2-23 or lease entered into between the department and any person or by
2-24 the terms of a license issued by the department to any person, for
2-25 the decontamination, closure, decommissioning, reclamation,
2-26 surveillance, or other care of a site or facility subject to
2-27 department jurisdiction under this chapter as needed to carry out
2-28 the purpose of this chapter.
2-29 (g) The existence of the radiation and perpetual care fund
2-30 does not make the department liable for the costs of
2-31 decontamination, transfer, transportation, reclamation,
2-32 surveillance, or disposal of radioactive material arising from a
2-33 license holder's abandonment of radioactive material, default on a
2-34 lawful obligation, insolvency, or inability to meet the
2-35 requirements of this chapter or department rules.
2-36 SECTION 5. Section 401.381(a), Health and Safety Code, is
2-37 amended to read as follows:
2-38 (a) A person who causes, suffers, allows, or permits a
2-39 violation of [violates] this chapter, a department rule or order,
2-40 or a license or registration condition is subject to a civil
2-41 penalty of not less than $100 or more than $25,000 for each
2-42 violation and for each day that a continuing violation occurs.
2-43 SECTION 6. Section 401.384(a), Health and Safety Code, is
2-44 amended to read as follows:
2-45 (a) The department may assess an administrative [a civil]
2-46 penalty as provided by this section and Sections 401.385-401.390
2-47 [401.385-401.391] against a person who causes, suffers, allows, or
2-48 permits a violation of [violates] a provision of this chapter
2-49 relating to an activity under the department's jurisdiction, a rule
2-50 or order adopted by the department under this chapter, or a
2-51 condition of a license or registration issued by the department
2-52 under this chapter.
2-53 SECTION 7. Section 401.385, Health and Safety Code, is
2-54 amended to read as follows:
2-55 Sec. 401.385. PRELIMINARY REPORT OF VIOLATION. If the
2-56 department, after an investigation, concludes that a violation
2-57 relating to an activity under its jurisdiction has occurred, the
2-58 department may issue a preliminary report:
2-59 (1) stating the facts that support the conclusion;
2-60 (2) recommending that an administrative [a civil]
2-61 penalty under Section 401.384 be imposed; and
2-62 (3) recommending the amount of the penalty, which
2-63 shall be based on the seriousness of the violation as determined
2-64 from the facts surrounding the violation.
2-65 SECTION 8. Sections 401.388(d) and (f), Health and Safety
2-66 Code, are amended to read as follows:
2-67 (d) Based on the findings of fact and the recommendations of
2-68 the hearing examiner, the commissioner by order may find that a
2-69 violation has occurred and assess an administrative [a civil]
3-1 penalty or may find that no violation occurred.
3-2 (f) The commissioner shall give notice to the person charged
3-3 of the commissioner's decision, and if the commissioner finds that
3-4 a violation has occurred and an administrative [a civil] penalty
3-5 has been assessed, the commissioner shall give to the person
3-6 charged written notice of:
3-7 (1) the commissioner's findings;
3-8 (2) the amount of the penalty; and
3-9 (3) the person's right to judicial review of the
3-10 commissioner's order.
3-11 SECTION 9. Section 401.430, Health and Safety Code, is
3-12 amended to read as follows:
3-13 Sec. 401.430. INSPECTIONS. (a) The department shall
3-14 inspect each mammography system that has not been fully certified
3-15 under the Mammography Quality Standards Act of 1992 (42 U.S.C.
3-16 Section 263b) not later than the 60th day after the date the
3-17 certification under this subchapter is issued.
3-18 (b) The board by rule shall establish the routine inspection
3-19 frequency for mammography systems that receive [department shall
3-20 inspect, at least once annually, each mammography system that
3-21 receives a] certification under this subchapter.
3-22 (c) [To protect the public health, the department may
3-23 conduct more frequent inspections than required under this section.]
3-24 [(d)] The department shall make reasonable attempts to
3-25 coordinate inspections under this section with other inspections
3-26 required under this chapter for the facility where the mammography
3-27 system is used.
3-28 (d) [(e)] After each satisfactory inspection, the department
3-29 shall issue a certificate of inspection for each mammography system
3-30 inspected. The certificate of inspection must be posted at a
3-31 conspicuous place on or near the place where the mammography system
3-32 is used. The certificate of inspection shall:
3-33 (1) specifically identify the mammography system
3-34 inspected;
3-35 (2) state the name and address of the facility where
3-36 the mammography system was used at the time of the inspection; and
3-37 (3) state the date of the inspection.
3-38 (e) [(f)] A notice of a mammography system's failure to
3-39 satisfy department standards shall be posted:
3-40 (1) on the mammography system at a conspicuous place
3-41 if the system is a machine; or
3-42 (2) near the place where the mammography system
3-43 practices if the system is an individual.
3-44 (f) [(g)] If a facility's mammography system fails to meet
3-45 the department's certification standards and the failure is a
3-46 Severity Level I violation under the department's rules, the
3-47 facility shall notify each patient on whom the facility performed a
3-48 mammography during the 30 days preceding the date of the inspection
3-49 that revealed the failure. The facility shall:
3-50 (1) inform the patient that the mammography system
3-51 failed to satisfy the department's certification standards;
3-52 (2) recommend that the patient have another mammogram
3-53 performed at a facility with a certified mammography system; and
3-54 (3) list the three facilities closest to the original
3-55 testing facility that have a certified mammography system.
3-56 (g) [(h)] In addition to the requirement of Subsection (f)
3-57 [(g)], the department may require a facility to notify a patient of
3-58 any other failure of the facility's mammography system to meet the
3-59 department's certification standards.
3-60 (h) [(i)] To protect the public health, the board may adopt
3-61 rules concerning the grounds for posting a failure notice and the
3-62 placement and size of the failure notice, and for patient
3-63 notification under Subsections (f) [(g)] and (g) [(h)], as
3-64 appropriate.
3-65 SECTION 10. (a) This Act takes effect September 1, 2001.
3-66 (b) Section 401.305(b), Health and Safety Code, as amended
3-67 by this Act, applies only to the deposit of an administrative
3-68 penalty collected under Sections 401.384-401.390, Health and Safety
3-69 Code, on or after the effective date of this Act. An
4-1 administrative penalty collected under Sections 401.384-401.390,
4-2 Health and Safety Code, before the effective date of this Act shall
4-3 be deposited as provided by the law as it existed immediately
4-4 before the effective date of this Act, and that law is continued in
4-5 effect for that purpose.
4-6 (c) Sections 401.381(a) and 401.384(a), Health and Safety
4-7 Code, as amended by this Act, apply only to a violation committed
4-8 on or after the effective date of this Act. For purposes of this
4-9 section, a violation is committed before the effective date of this
4-10 Act if any element of the violation occurs before that date.
4-11 (d) The Texas Department of Health may not collect the fee
4-12 authorized by Section 401.301(d), Health and Safety Code, as added
4-13 by this Act, as part of a fee any part of which was due before the
4-14 effective date of this Act.
4-15 * * * * *