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.
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