BILL ANALYSIS

C.S.H.B. 1137

By: Darby

Homeland Security & Public Safety

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Currently, the standard procedure for documenting the sale of a product containing pseudoephedrine involves the upkeep of written paper logs requiring the customer's signature.

C.S.H.B. 1137 seeks to implement efficiencies in the documentation of such a sale by implementing an electronic system that digitally files and stores a purchase of a product containing pseudoephedrine and that will ultimately assist in restricting criminal activities related to crystal methamphetamine production. Goals of the system include blocking the sale of pseudoephedrine if a customer requests an amount that exceeds the authorization limit for the purchase of the substance and providing local law enforcement access to sales records, which would be particularly important in the event that a customer is logged in the system as a repeat offender in requesting excessive amounts of the substance.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 1137 amends the Health and Safety Code, in a provision of law requiring a business establishment that engages in the over-the-counter sale of a product containing ephedrine, pseudoephedrine, or norpseudoephedrine to require the person making the purchase to display certain forms of identification before completing the sale, to specify that the form of identification containing the person's photograph and indicating that the person is 16 years of age or older must be government-issued. The bill, in a provision of law requiring such a business to include specified information in a record of the sale, adds to that specified information the date of birth of the person making the purchase, the address of the purchaser, the time of the purchase, and the type of identification displayed by the person and the identification number. The bill requires the business to transmit the record of sale to a real-time electronic logging system in accordance with the bill's provisions.  The bill replaces language requiring a business establishment to take actions necessary to prevent a person who makes over-the-counter purchases of one or more products containing ephedrine, pseudoephedrine, or norpseudoephedrine from obtaining more than certain specified amounts of those products or substances in a single transaction with language prohibiting such an establishment from selling to such a person more than certain specified amounts of such products within any calendar day. The bill decreases from six grams to 3.6 grams the maximum amount of ephedrine, pseudoephedrine, norpseudoephedrine, or a combination of those substances a business establishment can sell to the person within any calendar day and prohibits a business establishment from selling to a  person more than nine grams of such substances within any 30-day period.  The bill removes language permitting a business establishment to sell to a person two packages of such substances within a single transaction.

C.S.H.B. 1137 requires a business establishment, before completing an over-the-counter sale of a product containing ephedrine, pseudoephedrine, or norpseudoephedrine, to transmit the required information in the record of sale to a real-time electronic logging system.  The bill prohibits a business establishment from completing an over-the-counter sale of a product containing ephedrine, pseudoephedrine, or norpseudoephedrine if a real-time electronic logging system returns a report that the completion of the sale would result in the person obtaining an amount of ephedrine, pseudoephedrine, or norpseudoephedrine, or a combination of those substances greater than the maximum amount allowed, regardless of whether all or some of the products previously obtained by the buyer were sold at the establishment or another business establishment.  The bill prohibits an employee of a business establishment from completing a prohibited sale by using the override mechanism of the real-time electronic logging system unless the employee has a reasonable fear of imminent bodily injury or death from the person attempting to obtain ephedrine, pseudoephedrine, or norpseudoephedrine. The bill requires the administrators of a real-time electronic logging system to make available to the Department of Public Safety (DPS), on request, a copy of each record of an over-the-counter sale of a product containing ephedrine, pseudoephedrine, or norpseudoephedrine that is submitted by a business establishment in Texas.

C.S.H.B. 1137 requires a business establishment that engages in over-the-counter sales of ephedrine, pseudoephedrine, or norpseudoephedrine, if the establishment experiences a mechanical or electronic failure of the real-time electronic logging system, to maintain a written or electronic record made by any means that contains the information required to be included in a record of sale and to enter the information in the real-time electronic logging system as soon as practicable after the system becomes operational. The bill authorizes the State Board of Pharmacy, on application by a business establishment that operates a pharmacy and engages in over-the-counter sales of products containing ephedrine, pseudoephedrine, or norpseudoephedrine, and the Department of State Health Services (DSHS), on application of a business establishment that engages in over-the-counter sales of such products in accordance with a certificate of authority, to grant that business establishment a temporary extension, not to exceed 180 days, from the requirement of using a real-time electronic logging system. The bill requires a business establishment granted a temporary extension to keep records of sales in the same manner required for a business establishment that experiences a mechanical or electronic failure of the real-time electronic logging system. The bill specifies that a granted exemption does not relieve a business establishment of any duty under provisions of law relating to the over-the-counter sale of ephedrine, pseudoephedrine, and norpseudoephedrine other than the duty to use a real-time electronic logging system.

C.S.H.B. 1137 requires the administrators of a real-time electronic logging system to provide real-time access to the information in the system to DPS if DPS executes a memorandum of understanding with the administrators.  The bill establishes that a person is not liable for an act or omission arising from the person's compliance with prerequisites to and restrictions on sales of products containing ephedrine, pseudoephedrine, and norpseudoephedrine and the transmission of sales information to a real-time electronic logging system.

C.S.H.B. 1137 specifies that the privacy protections provided an individual under federal regulations relating to the privacy of individuals who purchase certain scheduled listed chemical products apply to the information entered or stored in a real-time electronic logging system. The bill authorizes a business establishment that engages in over-the-counter sales of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine to disclose information entered or stored in a real-time electronic logging system only to the United States Drug Enforcement Administration and other federal, state, and local law enforcement agencies. The bill prohibits such a business establishment from using information entered or stored in a real-time electronic logging system for any purpose other than for an authorized disclosure or to comply with the requirements of the bill. The bill establishes that such a business establishment or an employee or agent of the business establishment is not civilly liable for the release of information entered or stored in a real-time electronic logging system unless the release constitutes negligence, recklessness, or wilful misconduct. The bill exempts a business establishment that has used a real-time electronic logging system for more than two years from the requirement to maintain each record of sale of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine until at least the second anniversary of the date the record is made and make each record available on request by DSHS or DPS. The bill requires a business establishment that has used a real-time electronic logging system for longer than two years to destroy all paper records maintained in accordance with current law unless the destruction is otherwise prohibited by law.

C.S.H.B. 1137 requires the Texas State Board of Pharmacy and DSHS, not later than September 30, 2011, to provide the names, addresses, and phone numbers of all business establishments engaging in over-the-counter sales of products containing ephedrine, pseudoephedrine, and norpseudoephedrine to the administrators of any real-time electronic logging system.  The bill makes its provisions applicable to an over-the-counter sale of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine that is completed on or after January 1, 2012. The bill exempts a business establishment from the requirement to use a real-time electronic system until January 1, 2012.

C.S.H.B. 1137 defines "real-time electronic logging system" and makes conforming and nonsubstantive changes.

EFFECTIVE DATE

September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 1137 contains a provision not included in the original defining "real-time electronic logging system." The substitute removes a provision of law retained in the original permitting a business  establishment to sell to a person two packages of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine within any calendar day. The substitute omits a provision included in the original specifying that the real-time electronic logging system to which a business establishment that engages in sales of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine is required to transmit the information contained in a record of sale is a real-time electronic logging system used by certain pharmacies and law enforcement agencies that is administered by a certain type of nonprofit organization and making the use of such a system contingent on the availability of the system to the establishment at no cost.  The substitute contains a provision not included in the original prohibiting an employee of such a business establishment from using the override mechanism of a real-time electronic logging system unless the employee has a reasonable fear of imminent bodily injury or death from the person attempting to obtain ephedrine, pseudoephedrine, and norpseudoephedrine.

C.S.H.B. 1137 differs from the original by requiring the administrators of a real-time electronic logging system to make a copy of each record of sale available to the Department of Public Safety (DPS) on request of DPS, whereas the original requires the administrators to forward a copy of such records to DPS with no condition regarding a request by DPS. The substitute contains a provision not included in the original authorizing the State Board of Pharmacy or the Department of State Health Services, as applicable, to grant a temporary exemption from requirements to use a real-time electronic logging system to certain business establishments.

C.S.H.B. 1137 contains a provision not included in the original establishing certain privacy protections and certain disclosure and release requirements for information entered or stored in a real-time electronic logging system. The substitute contains a provision not in the original relating to record maintenance requirements for business establishments that have used a real-time electronic logging system for more than two years.

C.S.H.B. 1137 differs from the original by making its provisions applicable to an over-the-counter sale of a product containing ephedrine, pseudoephedrine, and norpseudoephedrine that is completed on or after January 1, 2012, whereas the original makes its provisions applicable to such a sale on the effective date of the original's provisions. The substitute contains a provision not in the original exempting a business establishment from the requirement to use a real-time electronic logging system until January 1, 2012. The substitute differs from the original by making its provisions effective  September 1, 2011, whereas the original makes its provisions effective January 1, 2012. The substitute omits a provision included in the original specifying that its provisions relating to the provision of certain contact information by the State Board of Pharmacy and the Department of State Health Services are effective September 1, 2011. The substitute differs from the original in conforming and nonsubstantive ways.