77R12829 YDB-D                           
         By Burnam                                             H.B. No. 3085
         Substitute the following for H.B. No. 3085:
         By Capelo                                         C.S.H.B. No. 3085
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the regulation of the sale and use of products
 1-3     containing mercury; providing a penalty.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Subtitle D, Title 6, Health and Safety Code, is
 1-6     amended by adding Chapter 508 to read as follows:
 1-7                       CHAPTER 508.  MERCURY REDUCTION
 1-8           Sec. 508.001.  DEFINITIONS. In this chapter:
 1-9                 (1)  "Board" means the Texas Board of Health.
1-10                 (2)  "Department" means the Texas Department of Health.
1-11                 (3)  "Manufacturer" means a person that produces a
1-12     product containing mercury or an importer or domestic distributor
1-13     of a product containing mercury produced in a foreign country.  For
1-14     a multicomponent product containing mercury, the manufacturer is
1-15     the last manufacturer to produce or assemble the product. If the
1-16     multicomponent product is produced in a foreign country, the
1-17     manufacturer is the importer or domestic distributor.
1-18                 (4)  "Mercury-added novelty" means a mercury-added
1-19     product intended for personal or household enjoyment or adornment.
1-20     Mercury-added novelties include items intended for use as practical
1-21     jokes, figurines, adornments, toys, games, cards, ornaments, yard
1-22     statues, candles, jewelry, holiday decorations, footwear, and items
1-23     of apparel.
1-24                 (5)  "Mercury-added product" means a product or a
 2-1     component of a product containing mercury or a mercury compound
 2-2     intentionally added to the product or component.
 2-3                 (6)  "Mercury fever thermometer" means a mercury-added
 2-4     product used for measuring body temperature.
 2-5                 (7)  "Product containing mercury" means a product or a
 2-6     component of a product that contains:
 2-7                       (A)  mercury; or
 2-8                       (B)  a mercury compound from any source,
 2-9     including a mercury-added product and a product manufactured using
2-10     mercury.
2-11           Sec. 508.002.  RULES. The board shall adopt rules to
2-12     administer this chapter.
2-13           Sec. 508.003.  NOTIFICATION. (a)  A manufacturer may not use
2-14     or distribute for promotional purposes or offer for sale a
2-15     mercury-added product in this state without filing a notification
2-16     form with the department and paying the fee required by Section
2-17     508.004.
2-18           (b)  The notification form must include:
2-19                 (1)  a brief description of the product to be used or
2-20     distributed or offered for sale;
2-21                 (2)  unless waived by the department for
2-22     confidentiality or practical considerations, the amount of and
2-23     purpose for mercury in each product unit reported as an exact
2-24     number or an average with an upper and lower limit;
2-25                 (3)  the name and address of the manufacturer;
2-26                 (4)  the name, address, and telephone number of a
2-27     contact person for the manufacturer; and
 3-1                 (5)  the total amount of mercury contained in all
 3-2     products containing mercury sold in the United States, provided
 3-3     either by individual manufacturers or aggregated for an industry by
 3-4     a trade group.
 3-5           (c)  On approval from the department, the manufacturer may
 3-6     supply the information required in Subsection (b) for a product
 3-7     category rather than an individual product.
 3-8           (d)  The manufacturer shall update and revise the information
 3-9     required in the notification when there is significant change in
3-10     the information or at the department's request.
3-11           Sec. 508.004.  FEE. The board by rule shall charge a fee for
3-12     each notification required under Section 508.003.  The amount of
3-13     the fee must cover the department's costs for administering this
3-14     chapter.
3-15           Sec. 508.005.  EXEMPTION. This chapter does not apply to
3-16     prescription drugs or any substance sold over the counter without a
3-17     prescription under the Federal Food, Drug, and Cosmetic Act (21
3-18     U.S.C. Section 301 et seq.).
3-19           Sec. 508.006.  CONFIDENTIALITY. (a)  Information collected by
3-20     the department under this chapter is for the confidential use of
3-21     the department and the interstate clearinghouse described by
3-22     Section 508.010 in the administration of this chapter if:
3-23                 (1)  the information relates to:
3-24                       (A)  production or sales figures; or
3-25                       (B)  processes or production unique to the
3-26     manufacturer; or
3-27                 (2)  release of the information may adversely affect
 4-1     the competitive position of the manufacturer.
 4-2           (b)  A manufacturer may expressly agree to the publication of
 4-3     information collected under this chapter.
 4-4           (c)  The department and the interstate clearinghouse may
 4-5     compile or publish analyses or summaries relating to the amount and
 4-6     effect of mercury in products and in the environment. The analyses
 4-7     or summaries may not identify any manufacturer or reveal any
 4-8     information that is confidential under this section.
 4-9           Sec. 508.007.  RESTRICTIONS ON SALE OF CERTAIN MERCURY-ADDED
4-10     PRODUCTS. (a)  A person may not use or distribute for promotional
4-11     purposes or offer for sale in this state a mercury-added novelty if
4-12     the seller knows or has reason to know the product contains
4-13     mercury.
4-14           (b)  A manufacturer that produces and sells mercury-added
4-15     novelties shall:
4-16                 (1)  notify retailers of the requirements of this
4-17     chapter and the proper method to dispose of remaining inventory;
4-18     and
4-19                 (2)  label each novelty with the warning "This product
4-20     contains mercury."
4-21           (c)  A person may not sell or supply mercury fever
4-22     thermometers to consumers or patients except by prescription. A
4-23     manufacturer of mercury fever thermometers shall include with each
4-24     thermometer instructions describing:
4-25                 (1)  the proper care and handling of the thermometer to
4-26     prevent breakage; and
4-27                 (2)  the proper procedures for cleaning up and
 5-1     disposing of mercury.
 5-2           (d)  Except as provided by Subsection (e), a primary or
 5-3     secondary school may not use or purchase for use in the school
 5-4     elemental mercury, mercury compounds, or mercury-added
 5-5     instructional equipment and materials.
 5-6           (e)  A primary or secondary school may use or purchase for
 5-7     use in the school measuring devices and thermometers that contain
 5-8     mercury only if:
 5-9                 (1)  the equipment is used in a school laboratory; and
5-10                 (2)  no adequate substitute for the mercury-added
5-11     equipment exists.
5-12           Sec. 508.008.  LIMITATIONS ON USE OF ELEMENTAL MERCURY. A
5-13     person may not sell or provide elemental mercury to another person
5-14     in this state unless the person provides a material safety data
5-15     sheet, as defined in 42 U.S.C. Section 11049, and the purchaser or
5-16     recipient signs a statement indicating the purchaser or recipient:
5-17                 (1)  will use the mercury only for medical, dental
5-18     amalgam dispose-caps, research, or manufacturing purposes;
5-19                 (2)  understands mercury is toxic and will store and
5-20     use the mercury appropriately to prevent the exposure of any person
5-21     to the mercury; and
5-22                 (3)  will not place or allow anyone under the
5-23     purchaser's or recipient's control to place the mercury or cause
5-24     the mercury to be placed in solid waste for disposal or in a
5-25     wastewater disposal system.
5-26           Sec. 508.009.  PUBLIC EDUCATION AND OUTREACH. (a)  The
5-27     department shall implement a public education, outreach, and
 6-1     assistance program for households, hazardous waste generators,
 6-2     local and regional solid waste management agencies, dismantlers,
 6-3     institutions, and schools on:
 6-4                 (1)  the hazards of mercury;
 6-5                 (2)  the requirements and obligations of individuals,
 6-6     manufacturers, and agencies under this chapter; and
 6-7                 (3)  voluntary actions that individuals, institutions,
 6-8     and businesses can take to reduce mercury in the environment.
 6-9           (b)  The department shall cooperate with manufacturers of
6-10     mercury-added products and other affected businesses in the
6-11     development and implementation of public education and technical
6-12     assistance programs.
6-13           (c)  The department shall cooperate with neighboring states
6-14     and regional organizations on developing outreach, assistance, and
6-15     education programs.
6-16           Sec. 508.010.  INTERSTATE CLEARINGHOUSE. (a)  The department
6-17     may participate in the establishment and implementation of a
6-18     regional, multistate clearinghouse to assist the department in:
6-19                 (1)  administering this chapter;
6-20                 (2)  coordinating reviews of:
6-21                       (A)  the manufacturers' notifications regarding
6-22     mercury-added products;
6-23                       (B)  applications for phase-out exemptions;
6-24                       (C)  collection plans;
6-25                       (D)  the disclosures of mercury content; and
6-26                       (E)  applications for alternative labeling; and
6-27                 (3)  providing education and outreach programs.
 7-1           (b)  The clearinghouse may also maintain:
 7-2                 (1)  a list of all products containing mercury,
 7-3     including mercury-added products;
 7-4                 (2)  a file on all exemptions granted by the states;
 7-5     and
 7-6                 (3)  a file of all the manufacturers' reports on the
 7-7     effectiveness of collection systems.
 7-8           Sec. 508.011.  ADMINISTRATIVE PENALTY. (a)  The department
 7-9     may assess an administrative penalty against a person who violates
7-10     this chapter or a rule adopted by the board under this chapter.
7-11           (b)  The penalty may not exceed $1,000 for each violation.
7-12     Each day a violation occurs or continues is a separate violation.
7-13           SECTION 2. This Act takes effect May 1, 2002.
7-14           SECTION 3. (a)  A person may not offer for final sale, use or
7-15     distribute for promotional purposes, or ship to an address in this
7-16     state any mercury-added product unless the person has complied with
7-17     Chapter 508, Health and Safety Code, as added by this Act, except
7-18     that a retailer in this state may sell products containing mercury
7-19     from the retailer's stock as it existed on the effective date of
7-20     this Act until September 1, 2002.
7-21           (b)  The Texas Board of Health shall adopt rules to
7-22     administer Chapter 508, Health and Safety Code, as added by this
7-23     Act, not later than July 1, 2002.
7-24           SECTION 4. (a)  The Texas Department of Health shall:
7-25                 (1)  review the effectiveness of Chapter 508, Health
7-26     and Safety Code, as added by this Act, not later than May 1, 2006;
7-27     and
 8-1                 (2)  provide a report on the effectiveness of Chapter
 8-2     508, Health and Safety Code, as added by this Act, to the governor,
 8-3     the lieutenant governor, and the speaker of the house of
 8-4     representatives not later than November 1, 2006.
 8-5           (b)  The report shall examine the effectiveness of the
 8-6     programs administered under Chapter 508, Health and Safety Code, as
 8-7     added by this Act.  The report may contain recommendations for
 8-8     improving the programs and recommendations for legislative action
 8-9     and may identify, with the assistance of the Texas Department of
8-10     Human Services, consumer products and products used in health care
8-11     facilities that contain mercury in amounts greater than one part
8-12     per billion.  The Texas Department of Health shall seek voluntary
8-13     industry cooperation.