78R3956 YDB-F
By: Burnam H.B. No. 963
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of the sale and use of products
containing mercury; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle D, Title 6, Health and Safety Code, is
amended by adding Chapter 508 to read as follows:
CHAPTER 508. MERCURY REDUCTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 508.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Department" means the Texas Department of Health.
(3) "Interstate clearinghouse" means a regional,
multistate clearinghouse as provided in Subchapter C.
(4) "Manufacturer" means a person that produces a
product containing mercury or an importer or domestic distributor
of a product containing mercury produced in a foreign country.
(5) "Mercury-added product" means a product or a
component of a product containing mercury or a mercury compound
intentionally added to the product or component.
(6) "Pharmacist" has the meaning assigned by Section
481.002.
(7) "Practitioner" has the meaning assigned by Section
481.002.
(8) "Product containing mercury" means a product or a
component of a product that contains:
(A) mercury; or
(B) a mercury compound from any source, including
a mercury-added product and a product manufactured using mercury.
Sec. 508.002. RULES. (a) The board shall adopt rules to
administer this chapter.
(b) In administering this chapter, the board shall seek
voluntary industry cooperation.
Sec. 508.003. EXEMPTION. Except as provided by Section
508.056, this chapter does not apply to a prescription drug or any
substance sold over the counter without a prescription under the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et
seq.).
Sec. 508.004. DEPARTMENTAL REVIEW OF CHAPTER. (a) The
department shall:
(1) review the effectiveness of this chapter not later
than May 1, 2008; and
(2) provide a report on the effectiveness of this
chapter to the governor, the lieutenant governor, and the speaker
of the house of representatives not later than November 1, 2008.
(b) The report required by Subsection (a)(2) shall examine
the effectiveness of the programs administered under this chapter.
The report may contain recommendations for improving the programs
and recommendations for legislative action and may identify, with
the assistance of the Texas Department of Human Services, consumer
products and products used in health care facilities that contain
mercury in amounts greater than one part per billion.
(c) This section expires February 1, 2009.
[Sections 508.005-508.050 reserved for expansion]
SUBCHAPTER B. MERCURY REGULATION
Sec. 508.051. REGISTRATION. (a) A manufacturer who uses,
distributes, or offers for sale a mercury-added product in this
state shall register by filing with the department a registration
statement as provided by this section.
(b) The board by rule shall detail the registration
requirements and prescribe the contents of the registration
statement. The registration statement must include:
(1) a brief description of the product to be used,
distributed, or offered for sale;
(2) the amount of mercury in each product unit
reported as an exact number or an average within an upper and lower
limit and the purpose for the mercury in the product;
(3) the name and address of the manufacturer; and
(4) the name, address, and telephone number of a
contact person for the manufacturer.
(c) A manufacturer must file the registration statement
with the department:
(1) before a mercury-added product manufactured by the
manufacturer is used, distributed, or offered for sale in this
state; and
(2) in each succeeding year the manufacturer continues
the business in this state, not later than the anniversary of the
initial filing.
(d) On approval from the department, the manufacturer may
supply the information required by Subsection (b) for a product
category rather than an individual product.
(e) The department may waive the information required by
Subsection (b)(2) as the department considers necessary to protect
the confidentiality of the trade secrets of the manufacturer or for
other practical reasons.
(f) The department, after notice and hearing, may refuse to
register or may cancel, revoke, suspend, or probate the
registration of a manufacturer who fails to comply with this
chapter.
Sec. 508.052. DETERMINATION OF MANUFACTURER OF
MULTICOMPONENT PRODUCT. For the purposes of this chapter, for a
multicomponent product containing mercury, the manufacturer is the
last manufacturer to produce or assemble the product. If the
multicomponent product is produced in a foreign country, the
manufacturer is the importer or domestic distributor.
Sec. 508.053. FEE. The board by rule shall charge a fee for
each initial registration statement and each annual registration
statement required under Section 508.051 in an amount necessary to
cover the department's costs for administering this chapter.
Sec. 508.054. CONFIDENTIALITY. (a) Except as provided by
this section, information collected by the department under this
chapter is available to the public. The department shall maintain
information as confidential and may not release the information to
the public if the department determines that:
(1) the information relates to:
(A) production or sales figures; or
(B) processes or production unique to the
manufacturer; or
(2) release of the information may adversely affect
the competitive position of the manufacturer.
(b) A manufacturer may expressly agree to the publication of
information collected under this chapter.
(c) The department may release confidential information to
the interstate clearinghouse. The clearinghouse may use
information obtained under this subsection only for the purposes
described by Subchapter C and shall maintain the information as
confidential.
Sec. 508.055. RESTRICTIONS ON SALE OF CERTAIN MERCURY-ADDED
PRODUCTS. (a) A person may not distribute or offer for sale in
this state a mercury-added product intended for personal or
household enjoyment or adornment, if the person knows or has reason
to know the product contains mercury, including an item intended
for use as a practical joke, figurine, adornment, toy, game, card,
ornament, yard statue, candle, piece of jewelry, or holiday
decoration or an item of apparel or footwear.
(b) This section does not prohibit the sale or distribution
of a product solely because the product uses a removable button cell
battery containing mercury.
Sec. 508.056. RESTRICTION ON SALE OF MERCURY FEVER
THERMOMETERS. (a) A person may not sell or distribute mercury
fever thermometers used for measuring body temperature in this
state except as provided by this section.
(b) A pharmacist may dispense a mercury fever thermometer
to a person only under a valid prescription.
(c) A manufacturer may not sell a mercury fever thermometer
to a person except to a pharmacy, school, practitioner, or other
person as provided by this chapter and board rule. A manufacturer
of mercury fever thermometers shall include with each thermometer
instructions describing:
(1) the proper care and handling of the thermometer to
prevent breakage; and
(2) the proper procedures for cleaning up and
disposing of mercury.
(d) A mercury fever thermometer does not include a digital
thermometer that uses a removable button cell battery containing
mercury.
Sec. 508.057. RESTRICTIONS ON MERCURY IN
SCHOOLS. (a) Except as provided by Subsection (b), a primary or
secondary school may not use or purchase for use in the school
elemental mercury, mercury compounds, or mercury-added
instructional equipment and materials.
(b) A primary or secondary school may use or purchase for
use in the school measuring devices and fever and other
thermometers that contain mercury as provided by board rule only
if:
(1) the equipment is used in a school laboratory; and
(2) no adequate substitute for the mercury-added
equipment exists.
Sec. 508.058. LIMITATIONS ON USE OF ELEMENTAL
MERCURY. (a) A person may not sell or distribute elemental
mercury to a purchaser or recipient in this state unless the person
provides to the purchaser or recipient a material safety data
sheet, as defined in 42 U.S.C. Section 11049, and the purchaser or
recipient signs a statement indicating the purchaser or recipient:
(1) understands mercury is toxic and should be stored
and used appropriately to prevent the exposure of any person to the
mercury; and
(2) should not place or allow anyone under the
purchaser's or recipient's control to place the mercury or cause the
mercury to be placed in solid waste for disposal or in a wastewater
disposal system.
(b) A purchaser or recipient may use elemental mercury only
for medical, dental, research, or manufacturing purposes.
Sec. 508.059. PUBLIC EDUCATION AND OUTREACH. (a) The
department shall implement a public education, outreach, and
assistance program for households, hazardous waste generators,
local and regional solid waste management agencies, dismantlers,
institutions, and schools on:
(1) the hazards of mercury;
(2) the requirements and obligations of individuals,
manufacturers, and agencies under this chapter; and
(3) the voluntary actions that individuals,
institutions, and businesses may take to reduce mercury in the
environment.
(b) The department shall cooperate with manufacturers of
mercury-added products and other affected businesses in the
development and implementation of public education and technical
assistance programs.
(c) The department shall cooperate with neighboring states
and regional organizations in the development of outreach,
assistance, and education programs.
[Sections 508.060-508.100 reserved for expansion]
SUBCHAPTER C. INTERSTATE CLEARINGHOUSE
Sec. 508.101. INTERSTATE CLEARINGHOUSE. (a) The
department may participate in the establishment and implementation
of an interstate clearinghouse to assist the department in:
(1) administering this chapter;
(2) coordinating reviews of:
(A) the manufacturers' notifications regarding
mercury-added products;
(B) collection plans; and
(C) the disclosures of mercury content; and
(3) providing education and outreach programs.
(b) The clearinghouse may also maintain:
(1) a list of all products containing mercury,
including mercury-added products; and
(2) a file on all exemptions granted by the states.
Sec. 508.102. PUBLICATION. The department and the
interstate clearinghouse may compile or publish analyses or
summaries relating to the amount and effect of mercury in products
and in the environment. The analyses or summaries may not identify
any manufacturer or reveal any information that is confidential
under this chapter.
[Sections 508.103-508.150 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT
Sec. 508.151. EXAMINATIONS AND INVESTIGATIONS. (a) To
enforce this chapter, an officer, employee, or agent of the
department, on the presentation of appropriate credentials to the
owner, operator, or agent, at reasonable times may enter a factory,
warehouse, or establishment in which a product containing mercury
is manufactured, processed, packaged, or held for introduction into
commerce in this state or in which a product containing mercury is
held after introduction into commerce, or a vehicle used to
transport or hold a product containing mercury in commerce, for the
purpose of inspecting within reasonable limits and in a reasonable
manner the factory, warehouse, establishment, or vehicle and all
pertinent equipment, finished and unfinished materials, and
labeling in the factory, warehouse, establishment, or vehicle.
(b) The officer, employee, or agent of the department may
obtain samples of any materials, packaging, labeling, or finished
product.
Sec. 508.152. RECORDS OF PRODUCT CONTAINING MERCURY IN
COMMERCE. (a) For the enforcement of this chapter, a carrier
engaged in commerce, a person receiving a product containing
mercury in commerce, or a person holding a product containing
mercury received in commerce, on request of the department shall
permit a representative of the department at reasonable times to
have access to and to copy all records showing the movement in
commerce or the holding after movement in commerce of any product
containing mercury and the quantity, consignees, and shipper of the
product containing mercury.
(b) Evidence obtained under this section may not be used in
the criminal prosecution of the person from whom the evidence is
obtained.
(c) A carrier is not subject to the other provisions of this
chapter because of the carrier's receipt, carriage, holding, or
delivery of a product containing mercury in the usual course of the
carrier's business.
Sec. 508.153. SEIZURE AND DISPOSITION OF BANNED
PRODUCT. (a) An authorized agent of the department who has good
reason to believe a product is a product containing mercury that may
not be distributed or sold under Section 508.055 or that is not
packaged as required by Section 508.056(c) shall affix to the
article a tag or other appropriate marking to:
(1) give notice that the article is or is suspected to
be a product containing mercury that may not be distributed or sold
under Section 508.055 or that is not packaged as required by Section
508.056(c) and that the article has been detained; and
(2) warn all persons not to remove the article from the
premises or dispose of the article by sale or in any other manner
until permission to do so is given by the agent or a court.
(b) The department shall petition a district court of Travis
County or the county in which the article is located to authorize
the disposition of the article. If the court determines the article
is a product containing mercury that may not be distributed or sold
under Section 508.055 or that is not packaged as required by Section
508.056(c), the department shall dispose of the article, and the
court shall impose all court costs and fees and storage and other
proper expenses against the claimant of the article.
(c) If the court finds the article is not a product
containing mercury that may not be distributed or sold under
Section 508.055 or that is not packaged as required by Section
508.056(c), the court shall order the department to remove the tags
or other markings.
Sec. 508.154. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates this chapter or a rule adopted by the
board under this chapter.
(b) An offense under this section is a Class C misdemeanor.
[Sections 508.155-508.200 reserved for expansion]
SUBCHAPTER E. ADMINISTRATIVE PENALTY
Sec. 508.201. IMPOSITION OF PENALTY. (a) The department
may impose an administrative penalty on a person:
(1) who produces a product containing mercury that is
distributed in this state or who imports or distributes in this
state a product containing mercury produced in a foreign country;
and
(2) who violates this chapter or a rule or order
adopted under this chapter.
(b) A penalty collected under this subchapter shall be
deposited in the state treasury in the general revenue fund.
Sec. 508.202. AMOUNT OF PENALTY. (a) The amount of the
penalty may not exceed $5,000 for each violation, and each day a
violation continues or occurs is a separate violation for purposes
of imposing a penalty. The total amount of the penalty assessed for
a violation continuing or occurring on separate days under this
subsection may not exceed $25,000.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the
violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith,
including when applicable whether the violator made good faith
efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 508.203. REPORT AND NOTICE OF VIOLATION AND
PENALTY. (a) If the department initially determines that a
violation occurred, the department shall give written notice of the
report by certified mail to the person.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 508.204. PENALTY TO BE PAID OR HEARING
REQUESTED. (a) Within 20 days after the date the person receives
the notice sent under Section 508.203, the person in writing may:
(1) accept the determination and recommended penalty
of the department; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the
commissioner of public health by order shall approve the
determination and impose the recommended penalty.
Sec. 508.205. HEARING. (a) If the person requests a
hearing, the commissioner of public health shall refer the matter
to the State Office of Administrative Hearings, which shall
promptly set a hearing date and give written notice of the time and
place of the hearing to the person. An administrative law judge of
the State Office of Administrative Hearings shall conduct the
hearing.
(b) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner of
public health a proposal for a decision about the occurrence of the
violation and the amount of a proposed penalty.
Sec. 508.206. DECISION BY COMMISSIONER. (a) Based on the
findings of fact, conclusions of law, and proposal for a decision,
the commissioner of public health by order may:
(1) find that a violation occurred and impose a
penalty; or
(2) find that a violation did not occur.
(b) The notice of the commissioner's order under Subsection
(a) that is sent to the person in accordance with Chapter 2001,
Government Code, must include a statement of the right of the person
to judicial review of the order.
Sec. 508.207. OPTIONS FOLLOWING DECISION: PAY OR
APPEAL. Within 30 days after the date an order of the commissioner
of public health under Section 508.206 that imposes an
administrative penalty becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
commissioner's order contesting the occurrence of the violation,
the amount of the penalty, or both.
Sec. 508.208. STAY OF ENFORCEMENT OF PENALTY. (a) Within
the 30-day period prescribed by Section 508.207, a person who files
a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health by certified mail.
(b) If the commissioner of public health receives a copy of
an affidavit under Subsection (a)(2), the commissioner may file
with the court, within five days after the date the copy is
received, a contest to the affidavit. The court shall hold a hearing
on the facts alleged in the affidavit as soon as practicable and
shall stay the enforcement of the penalty on finding that the
alleged facts are true. The person who files an affidavit has the
burden of proving that the person is financially unable to pay the
penalty or to give a supersedeas bond.
Sec. 508.209. COLLECTION OF PENALTY. (a) If the person
does not pay the penalty and the enforcement of the penalty is not
stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 508.210. DECISION BY COURT. (a) If the court
sustains the finding that a violation occurred, the court may
uphold or reduce the amount of the penalty and order the person to
pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 508.211. REMITTANCE OF PENALTY OR INTEREST. (a) If
the person paid the penalty and if the amount of the penalty is
reduced or the penalty is not upheld by the court, the court shall
order, when the court's judgment becomes final, that the
appropriate amount plus accrued interest be remitted to the person
within 30 days after the date that the judgment of the court becomes
final.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
Sec. 508.212. RELEASE OF BOND. (a) If the person gave a
supersedeas bond and the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, the
release of the bond.
(b) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 508.213. ADMINISTRATIVE PROCEDURE. A proceeding to
impose the penalty is considered to be a contested case under
Chapter 2001, Government Code.
SECTION 2. (a) A person may not offer for sale or
distribute in this state any mercury-added product unless the
person has complied with Chapter 508, Health and Safety Code, as
added by this Act, except that a retailer in this state may sell
until September 1, 2004, products containing mercury from the
retailer's stock as it existed on the effective date of this Act.
(b) The Texas Board of Health shall adopt rules to
administer Chapter 508, Health and Safety Code, as added by this
Act, not later than July 1, 2004.
SECTION 3. A manufacturer that sells a mercury-added
product prohibited under Section 508.055, Health and Safety Code,
as added by this Act, shall notify retailers of the requirements of
Chapter 508, Health and Safety Code, as added by this Act, and the
proper method to dispose of remaining inventory.
SECTION 4. This Act takes effect May 1, 2004.