By Moncrief S.B. No. 1045
77R4712 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the hazardous substances law; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 501.001, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 501.001. DEFINITIONS. In this chapter:
1-7 (1) "Board" means the Texas Board of Health.
1-8 (2) "Commerce" includes the operation of a business or
1-9 service establishment and other commerce in this state that is
1-10 subject to the jurisdiction of this state.
1-11 (3) "Commissioner" means the commissioner of public
1-12 health.
1-13 (4) "Department" means the Texas Department of Health.
1-14 (5) [(4)] "Label" means a display of written, printed,
1-15 or other graphic matter:
1-16 (A) on the immediate container, excluding the
1-17 package liner, of any substance; or
1-18 (B) directly on the article or on a tag or other
1-19 suitable material affixed to the article, if the article is
1-20 unpackaged or not packaged in an immediate container intended or
1-21 suitable for delivery to the ultimate consumer.
1-22 (6) [(5)] "Misbranded hazardous substance" means
1-23 either of the following that is not properly packaged or does not
1-24 bear a proper label required by this chapter:
2-1 (A) a hazardous substance; or
2-2 (B) a toy or other article intended for use by
2-3 children that bears or contains a hazardous substance in a manner
2-4 that is accessible by a child to whom the toy or other article is
2-5 entrusted, intended, or packaged in a form suitable for use in a
2-6 household or by children.
2-7 SECTION 2. Subsections (a) and (d), Section 501.002, Health
2-8 and Safety Code, are amended to read as follows:
2-9 (a) A hazardous substance is:
2-10 (1) a substance or mixture of substances that is
2-11 toxic, corrosive, extremely flammable, flammable, combustible, an
2-12 irritant, or a strong sensitizer, or that generates pressure
2-13 through decomposition, heat, or other means, if the substance or
2-14 mixture of substances may cause substantial personal injury or
2-15 substantial illness during or as a proximate result of any
2-16 customary or reasonably foreseeable handling or use, including
2-17 reasonably foreseeable ingestion by children;
2-18 (2) a toy or other article, other than clothing, that
2-19 is intended for use by a child and that presents an electrical,
2-20 mechanical, or thermal hazard; or
2-21 (3) a radioactive substance designated as a hazardous
2-22 substance under Section 501.003.
2-23 (d) A substance or article is extremely flammable,
2-24 flammable, or combustible if it is defined as extremely flammable,
2-25 flammable, or combustible by rule of the board. Unless the board
2-26 determines that the health, safety, and welfare of persons in this
2-27 state requires a different definition, the board shall define the
3-1 terms as they are defined by the Federal Hazardous Substances Act
3-2 (15 U.S.C. Section 1261 et seq.), as amended, and by federal
3-3 regulations adopted under that Act. Until the board adopts a
3-4 different definition, the terms each have the meaning assigned by
3-5 the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
3-6 seq.) and by federal regulations adopted under that Act, as of
3-7 September 1, 2001 [is flammable if it has a flash point of 80
3-8 degrees Fahrenheit or less, as determined by the Tagliabue Open Cup
3-9 Tester or other method as provided by Section 501.021].
3-10 SECTION 3. Section 501.021, Health and Safety Code, is
3-11 amended to read as follows:
3-12 Sec. 501.021. FLAMMABILITY STANDARDS; DETERMINATION OF
3-13 FLAMMABILITY. (a) The board by rule shall establish the methods
3-14 for determining the flammability of solids, fabrics, children's
3-15 clothing, household furnishings, and the contents of
3-16 self-pressurized containers that the board finds are generally
3-17 applicable to those materials or containers.
3-18 (b) The board by rule shall establish flammability standards
3-19 for articles described by Subsection (a). Unless the board
3-20 determines that the health, safety, and welfare of persons in this
3-21 state requires a different standard, the standards must conform to
3-22 standards prescribed by federal regulations adopted under the
3-23 federal Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.), as
3-24 amended, the Federal Hazardous Substances Act (15 U.S.C. Section
3-25 1261 et seq.), as amended, and the federal Consumer Product Safety
3-26 Act (15 U.S.C. Section 2051 et seq.), as amended. Until the board
3-27 adopts different standards, the flammability standards for articles
4-1 described by Subsection (a) are the standards prescribed by federal
4-2 regulations adopted under the federal Flammable Fabrics Act (15
4-3 U.S.C. Section 1191 et seq.), the Federal Hazardous Substances Act
4-4 (15 U.S.C. Section 1261 et seq.), and the federal Consumer Product
4-5 Safety Act (15 U.S.C. Section 2051 et seq.) as of September 1,
4-6 2001.
4-7 (c) The department may obtain samples of articles described
4-8 by Subsection (a) and [shall] determine the flammability of the
4-9 [those] articles for compliance with applicable standards
4-10 established under this section.
4-11 SECTION 4. Subsection (a), Section 501.022, Health and
4-12 Safety Code, is amended to read as follows:
4-13 (a) The board by rule shall designate as a banned hazardous
4-14 substance any article, including [of] clothing intended for the use
4-15 of children, that is not properly packaged or that does not comply
4-16 with applicable flammability standards established by the board.
4-17 The board's determination that articles of clothing of a specified
4-18 range of sizes are intended for the use of a child 14 years of age
4-19 or younger is conclusive.
4-20 SECTION 5. The heading for Section 501.023, Health and
4-21 Safety Code, is amended to read as follows:
4-22 Sec. 501.023. GENERAL LABELING AND PACKAGING REQUIREMENTS.
4-23 SECTION 6. Subchapter B, Chapter 501, Health and Safety
4-24 Code, is amended by adding Sections 501.0231, 501.0232, and
4-25 501.0233 to read as follows:
4-26 Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES.
4-27 (a) Toys or games intended for use by children, including the
5-1 parts of those toys or games, shall be labeled in the manner
5-2 required by rule of the board. Unless the board determines that
5-3 the health, safety, and welfare of persons in this state requires a
5-4 deviation from federal standards, the board's rules under this
5-5 subsection shall be consistent with federal guidelines and
5-6 regulations adopted under the Federal Hazardous Substances Act (15
5-7 U.S.C. Section 1261 et seq.), as amended. Until the board adopts
5-8 rules under this subsection, the toys, games, and parts shall be
5-9 labeled in the manner required by federal guidelines and
5-10 regulations adopted under the Federal Hazardous Substances Act (15
5-11 U.S.C. Section 1261 et seq.) as of September 1, 2001.
5-12 (b) Latex balloons, small balls, marbles, and any toy or
5-13 game that contains such a balloon, ball, or marble shall be labeled
5-14 in the manner required by rule of the board. Unless the board
5-15 determines that the health, safety, and welfare of persons in this
5-16 state requires a deviation from federal standards, the board's
5-17 rules under this subsection shall be consistent with federal
5-18 guidelines and regulations adopted under the Federal Hazardous
5-19 Substances Act (15 U.S.C. Section 1261 et seq.), as amended. Until
5-20 the board adopts rules under this subsection, latex balloons, small
5-21 balls, marbles, and any toy or game that contains such a balloon,
5-22 ball, or marble shall be labeled in the manner required by federal
5-23 guidelines and regulations adopted under the Federal Hazardous
5-24 Substances Act (15 U.S.C. Section 1261 et seq.) as of September 1,
5-25 2001.
5-26 Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART
5-27 MATERIALS. (a) Art materials shall be reviewed by a toxicologist.
6-1 (b) Art materials shall be labeled in the manner required by
6-2 rule of the board. Unless the board determines that the health,
6-3 safety, and welfare of persons in this state requires a deviation
6-4 from federal standards, the board's rules under this subsection
6-5 shall be consistent with the Federal Hazardous Substances Act (15
6-6 U.S.C. Section 1261 et seq.), as amended, and federal regulations
6-7 adopted under that Act. Until the board adopts rules under this
6-8 subsection, art materials shall be labeled in the manner required
6-9 by the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
6-10 seq.), and federal regulations adopted under that Act, as of
6-11 September 1, 2001.
6-12 Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Hazardous
6-13 substances shall be packaged in the manner required by special
6-14 packaging rules adopted by the board. Unless the board determines
6-15 that the health, safety, and welfare of persons in this state
6-16 requires a deviation from federal standards, the board's rules
6-17 under this section shall be consistent with federal special
6-18 packaging regulations adopted under the federal Poison Prevention
6-19 Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.), as amended.
6-20 Until the board adopts rules under this section, hazardous
6-21 substances shall be packaged in the manner required by federal
6-22 special packaging regulations adopted under the federal Poison
6-23 Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.),
6-24 as of September 1, 2001.
6-25 SECTION 7. Section 501.024, Health and Safety Code, is
6-26 amended to read as follows:
6-27 Sec. 501.024. REGISTRATION. (a) A person who manufactures,
7-1 imports, or repacks a hazardous substance that is distributed in
7-2 this state or who distributes a hazardous substance in this state
7-3 under the person's private brand name shall have on file with the
7-4 department a registration statement as provided by this section.
7-5 (b) The board by rule shall detail the registration
7-6 requirements and prescribe the contents of the registration
7-7 statement.
7-8 (c) The person must file the registration statement with the
7-9 department [before]:
7-10 (1) before beginning business in this state as a
7-11 manufacturer, importer, repacker, or distributor of a hazardous
7-12 substance; and
7-13 (2) in each succeeding year that the person continues
7-14 the business in this state, not later than the anniversary of
7-15 [September 1 of each year after] the initial filing.
7-16 (d) The initial registration statement and each annual
7-17 registration statement must be accompanied by a fee prescribed by
7-18 the board [of $150].
7-19 (e) The department, after notice and hearing, may refuse to
7-20 register or may cancel, revoke, or suspend the registration of a
7-21 person who manufactures, imports, repacks, or distributes a
7-22 hazardous substance if the person fails to comply with the
7-23 requirements of this chapter [make timely payment of the fee].
7-24 (f) A hazardous substance is subject to seizure and
7-25 disposition under Section 501.033 if the person who manufactures,
7-26 imports, repacks, or distributes the hazardous substance does not,
7-27 after notice by the department, register with the department and
8-1 make timely payment of the fee under this section.
8-2 (g) This section does not apply to a retailer who
8-3 distributes a hazardous substance to the general public unless the
8-4 retailer distributes a hazardous substance made to its
8-5 specifications.
8-6 SECTION 8. Section 501.025, Health and Safety Code, is
8-7 amended to read as follows:
8-8 Sec. 501.025. RULES. The board may adopt reasonable rules
8-9 necessary for the efficient administration and enforcement of this
8-10 chapter. Unless the board determines that the health, safety, and
8-11 welfare of persons in this state requires a deviation from federal
8-12 regulations, the [The] rules must conform with regulations adopted
8-13 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
8-14 et seq.), as amended, the federal Consumer Product Safety Act (15
8-15 U.S.C. Section 2051 et seq.), as amended, the federal Flammable
8-16 Fabrics Act (15 U.S.C. Section 1191 et seq.), as amended, and the
8-17 federal Poison Prevention Packaging Act of 1970 (15 U.S.C. Section
8-18 1471 et seq.), as amended, as applicable.
8-19 SECTION 9. Subchapter B, Chapter 501, Health and Safety
8-20 Code, is amended by adding Section 501.026 to read as follows:
8-21 Sec. 501.026. FEES. The board by rule shall set reasonable
8-22 registration fees in an amount designed to recover not more than
8-23 the costs to the department of administering, monitoring compliance
8-24 with, enforcing, and conducting tests under this chapter.
8-25 SECTION 10. Subsection (b), Section 501.031, Health and
8-26 Safety Code, is amended to read as follows:
8-27 (b) The officer, employee, or agent of the department may
9-1 obtain samples of any materials, packaging, [or] labeling, or
9-2 finished product. [The officer, employee, or agent shall pay or
9-3 offer to pay the owner, operator, or agent in charge for a sample
9-4 and shall give a receipt describing a sample obtained.]
9-5 SECTION 11. Subsection (b), Section 501.033, Health and
9-6 Safety Code, is amended to read as follows:
9-7 (b) The department shall petition a [the] district court of
9-8 Travis County or of the county in which the article is located to
9-9 authorize the destruction of the article. If the court determines
9-10 that the article is a banned or misbranded hazardous substance, the
9-11 department shall destroy the article, and the court shall impose
9-12 all court costs and fees and storage and other proper expenses
9-13 against the claimant of the article. However, if the court finds
9-14 that misbranding occurred in good faith and can be corrected by
9-15 proper labeling, the court may direct that the article be delivered
9-16 to the claimant for proper labeling with the approval of the
9-17 department.
9-18 SECTION 12. Section 501.034, Health and Safety Code, is
9-19 amended by adding Subsections (g) and (h) to read as follows:
9-20 (g) A person may not manufacture, import, or repack a
9-21 hazardous substance that is to be distributed in this state or
9-22 otherwise distribute a hazardous substance in this state without
9-23 complying with Section 501.024.
9-24 (h) A person may not package a hazardous substance in a new
9-25 or reused food, drug, or cosmetic container that is identifiable as
9-26 a food, drug, or cosmetic container by its labeling or other
9-27 identification.
10-1 SECTION 13. Subsections (a) and (b), Section 501.035, Health
10-2 and Safety Code, are amended to read as follows:
10-3 (a) A person commits an offense if the person
10-4 [intentionally, knowingly, or recklessly] violates this chapter or
10-5 a rule adopted under this chapter.
10-6 (b) An offense under this section is a [Class B misdemeanor
10-7 unless it is shown on the trial of the offense that the person's
10-8 intent was to defraud another, in which event the offense is a]
10-9 Class A misdemeanor.
10-10 SECTION 14. Subchapter C, Chapter 501, Health and Safety
10-11 Code, is amended by adding Sections 501.036 and 501.037 to read as
10-12 follows:
10-13 Sec. 501.036. INJUNCTION. (a) If it appears that a person
10-14 has violated, is violating, or is threatening to violate this
10-15 chapter or a rule adopted or order issued under this chapter, the
10-16 commissioner may request the attorney general or a district,
10-17 county, or city attorney of the county or municipality in which the
10-18 violation has occurred, is occurring, or may occur to institute a
10-19 civil suit for:
10-20 (1) an order enjoining the violation or an order
10-21 directing compliance; or
10-22 (2) a permanent or temporary injunction, restraining
10-23 order, or other appropriate order if the department shows that the
10-24 person has engaged in, is engaging in, or is about to engage in a
10-25 violation of this chapter or a rule adopted or order issued under
10-26 this chapter.
10-27 (b) Venue for a suit brought under this section is in the
11-1 county or municipality in which the violation occurred or in Travis
11-2 County.
11-3 (c) The commissioner and either the attorney general or the
11-4 district, county, or city attorney, as appropriate, may each
11-5 recover from the violator reasonable expenses incurred in obtaining
11-6 injunctive relief under this section, including investigative
11-7 costs, court costs, reasonable attorney's fees, witness fees, and
11-8 deposition expenses. Expenses recovered by the commissioner may be
11-9 appropriated only to the department to administer and enforce this
11-10 chapter. Expenses recovered by the attorney general may be
11-11 appropriated only to the attorney general.
11-12 Sec. 501.037. RECALL ORDERS. (a) In conjunction with the
11-13 detention of an article under Section 501.033, the commissioner may
11-14 order that a hazardous substance be recalled from commerce.
11-15 (b) The commissioner's recall order may require the articles
11-16 to be removed to one or more secure areas approved by the
11-17 commissioner or an authorized agent of the commissioner.
11-18 (c) The recall order must be in writing and signed by the
11-19 commissioner.
11-20 (d) The recall order may be issued before or in conjunction
11-21 with the affixing of the tag or other appropriate marking as
11-22 provided by Section 501.033.
11-23 (e) The recall order is effective until the order:
11-24 (1) expires on its own terms;
11-25 (2) is withdrawn by the commissioner; or
11-26 (3) is reversed by a court in an order denying
11-27 destruction under Section 501.033.
12-1 (f) The claimant of the articles or the claimant's agent
12-2 shall pay the costs of the removal and storage of the articles
12-3 removed.
12-4 (g) If the claimant or the claimant's agent does not
12-5 implement the recall order in a timely manner, the commissioner may
12-6 provide for the recall of the articles. The costs of the recall
12-7 shall be assessed against the claimant of the articles or the
12-8 claimant's agent.
12-9 (h) The commissioner may request the attorney general to
12-10 bring an action in a district court of Travis County to recover
12-11 costs of the recall. In a judgment in favor of the state, the
12-12 court may award costs, attorney's fees, and court costs related to
12-13 the recall together with interest on those costs from the time an
12-14 expense was incurred through the date the department is reimbursed.
12-15 SECTION 15. This Act takes effect September 1, 2001.
12-16 SECTION 16. (a) A change in law made by this Act relating
12-17 to the criminal or civil enforcement of Chapter 501, Health and
12-18 Safety Code, applies only to an offense under or other violation of
12-19 Chapter 501, Health and Safety Code, that occurs on or after the
12-20 effective date of this Act, including a continuing offense or
12-21 continuing violation to the extent that it continues on or after
12-22 the effective date of this Act.
12-23 (b) An offense under or other violation of Chapter 501,
12-24 Health and Safety Code, that occurs before the effective date of
12-25 this Act is covered by the law relating to the criminal and civil
12-26 enforcement of Chapter 501, Health and Safety Code, in effect when
12-27 the violation occurred, and the former law is continued in effect
13-1 for that purpose.
13-2 (c) For purposes of this section, a criminal offense is
13-3 committed before the effective date of this Act if any element of
13-4 the offense occurs before that date.