82R17713 GCB-F
By: Darby, Flynn, Driver, Berman H.B. No. 1137
Substitute the following for H.B. No. 1137:
By: Beck C.S.H.B. No. 1137
A BILL TO BE ENTITLED
AN ACT
relating to the transmission of records regarding over-the-counter
sales of ephedrine, pseudoephedrine, and norpseudoephedrine and a
person's civil liability for certain acts arising from the sale of
those products.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 486.001(a), Health and Safety Code, is
amended by adding Subdivision (6) to read as follows:
(6) "Real-time electronic logging system" means a
system intended to be used by law enforcement agencies and
pharmacies or other business establishments that:
(A) is installed, operated, and maintained free
of any one-time or recurring charge to the business establishment
or to the state;
(B) is able to communicate in real time with
similar systems operated in other states and similar systems
containing information submitted by more than one state;
(C) complies with the security policy of the
Criminal Justice Information Services division of the Federal
Bureau of Investigation;
(D) complies with information exchange standards
adopted by the National Information Exchange Model;
(E) uses a mechanism to prevent the completion of
a sale of a product containing ephedrine, pseudoephedrine, or
norpseudoephedrine that would violate state or federal law
regarding the purchase of a product containing those substances;
and
(F) is equipped with an override of the mechanism
described in Paragraph (E) that:
(i) may be activated by an employee of a
business establishment; and
(ii) creates a record of each activation of
the override.
SECTION 2. Section 486.014, Health and Safety Code, is
amended to read as follows:
Sec. 486.014. PREREQUISITES TO AND RESTRICTIONS ON SALE.
(a) Before completing an over-the-counter sale of a product
containing ephedrine, pseudoephedrine, or norpseudoephedrine, a
business establishment that engages in those sales shall:
(1) require the person making the purchase to:
(A) display a driver's license or other form of
government-issued identification containing the person's
photograph and indicating that the person is 16 years of age or
older; and
(B) sign for the purchase;
(2) make a record of the sale, including the name and
date of birth of the person making the purchase, the address of the
purchaser, the date and time of the purchase, the type of
identification displayed by the person and the identification
number, and the item and number of grams purchased; and
(3) transmit the record of sale as required by Section
486.0141.
(b) A business establishment may not sell to [take actions
necessary to prevent] a person who makes over-the-counter purchases
of one or more products containing ephedrine, pseudoephedrine, or
norpseudoephedrine:
(1) within any calendar day, [from obtaining from the
establishment in a single transaction] more than 3.6[:
[(A) two packages of those products; or
[(B) six] grams of ephedrine, pseudoephedrine,
norpseudoephedrine, or a combination of those substances; and
(2) within any 30-day period, more than nine grams of
ephedrine, pseudoephedrine, norpseudoephedrine, or a combination
of those substances.
SECTION 3. Subchapter B, Chapter 486, Health and Safety
Code, is amended by adding Sections 486.0141, 486.0142, 486.0143,
486.0144, 486.0145, and 486.0146 to read as follows:
Sec. 486.0141. TRANSMISSION OF SALES INFORMATION TO
REAL-TIME ELECTRONIC LOGGING SYSTEM. (a) Before completing an
over-the-counter sale of a product containing ephedrine,
pseudoephedrine, or norpseudoephedrine, a business establishment
that engages in those sales shall transmit the information in the
record made under Section 486.014(a)(2) to a real-time electronic
logging system.
(b) Except as provided by Subsection (c), a business
establishment may not complete an over-the-counter sale of a
product containing ephedrine, pseudoephedrine, or
norpseudoephedrine if the 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,
norpseudoephedrine, or a combination of those substances greater
than the amount described by Section 486.014(b), regardless of
whether all or some of the products previously obtained by the buyer
were sold at the establishment or another business establishment.
(c) An employee of a business establishment may complete a
sale prohibited by Subsection (b) by using the override mechanism
described by Section 486.001(a)(6)(F) only if the employee has a
reasonable fear of imminent bodily injury or death from the person
attempting to obtain ephedrine, pseudoephedrine, or
norpseudoephedrine.
(d) On request of the Department of Public Safety, the
administrators of a real-time electronic logging system shall make
available to the department 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 located in this state.
Sec. 486.0142. TEMPORARY EXEMPTION. (a) On application by
a business establishment that operates a pharmacy and engages in
over-the-counter sales of products containing ephedrine,
pseudoephedrine, or norpseudoephedrine as authorized by Section
486.011, the State Board of Pharmacy may grant that business
establishment a temporary exemption, not to exceed 180 days, from
the requirement of using a real-time electronic logging system
under this chapter.
(b) On application by a business establishment that engages
in over-the-counter sales of products containing ephedrine,
pseudoephedrine, or norpseudoephedrine in accordance with a
certificate of authority issued under Section 486.012, the
department may grant that business establishment a temporary
exemption, not to exceed 180 days, from the requirement of using a
real-time electronic logging system under this chapter.
(c) A business establishment granted a temporary exemption
under this section must keep records of sales in the same manner
required under Section 486.0143 for a business establishment that
experiences a mechanical or electronic failure of the real-time
electronic logging system.
(d) An exemption granted under this section does not relieve
a business establishment of any duty under this chapter other than
the duty to use a real-time electronic logging system.
Sec. 486.0143. WRITTEN LOG OR OTHER ELECTRONIC
RECORDKEEPING. If a business establishment that engages in
over-the-counter sales of a product containing ephedrine,
pseudoephedrine, or norpseudoephedrine experiences a mechanical or
electronic failure of the real-time electronic logging system, the
business shall:
(1) maintain a written record or an electronic record
made by any means that satisfies the requirements of Section
486.014(a)(2); and
(2) enter the information in the real-time electronic
logging system as soon as practicable after the system becomes
operational.
Sec. 486.0144. ONLINE PORTAL. The administrators of a
real-time electronic logging system shall provide real-time access
to the information in the system to the Department of Public Safety
if the department executes a memorandum of understanding with the
administrators.
Sec. 486.0145. LIMITATION ON CIVIL LIABILITY. A person is
not liable for an act or omission arising from the person's
compliance with the requirements of Section 486.014 or 486.0141.
Sec. 486.0146. PRIVACY PROTECTIONS. (a) The privacy
protections provided an individual under 21 C.F.R. Section 1314.45
apply to information entered or stored in a real-time electronic
logging system.
(b) A business establishment that engages in
over-the-counter sales of a product containing ephedrine,
pseudoephedrine, or norpseudoephedrine may 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.
(c) A business establishment that engages in
over-the-counter sales of a product containing ephedrine,
pseudoephedrine, or norpseudoephedrine may not use information
entered or stored in a real-time electronic logging system for any
purpose other than for a disclosure authorized by Subsection (b) or
to comply with the requirements of this chapter.
(d) Notwithstanding Subsection (c), a business
establishment that engages in over-the-counter sales of a product
containing ephedrine, pseudoephedrine, or norpseudoephedrine 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.
SECTION 4. Section 486.015, Health and Safety Code, is
amended to read as follows:
Sec. 486.015. MAINTENANCE OF RECORDS. (a) Except as
provided by Subsection (b), a [The] business establishment shall
maintain each record made under Section 486.014(a)(2) [486.014(2)]
until at least the second anniversary of the date the record is made
and shall make each record available on request by the department or
the Department of Public Safety.
(b) Subsection (a) does not apply to a business
establishment that has used a real-time electronic logging system
for longer than two years.
(c) A business establishment that has used a real-time
electronic logging system for longer than two years shall destroy
all paper records maintained under this section unless the
destruction is otherwise prohibited by law.
SECTION 5. Not later than September 30, 2011, the Texas
State Board of Pharmacy and the Department of State Health Services
shall provide to the administrators of any real-time electronic
logging system described by Subchapter B, Chapter 486, Health and
Safety Code, as amended by this Act, the names, addresses, and phone
numbers of all business establishments engaging in
over-the-counter sales of products containing ephedrine,
pseudoephedrine, and norpseudoephedrine.
SECTION 6. (a) The changes in law made by this Act apply
only to an over-the-counter sale of a product containing ephedrine,
pseudoephedrine, or norpseudoephedrine that is completed on or
after January 1, 2012. An over-the-counter sale of a product
containing ephedrine, pseudoephedrine, or norpseudoephedrine that
was completed before January 1, 2012, is covered by the law in
effect when the sale was completed, and the former law is continued
in effect for that purpose.
(b) A business establishment is not required to use a
real-time electronic logging system required by Subchapter B,
Chapter 486, Health and Safety Code, as amended by this Act, before
January 1, 2012.
SECTION 7. This Act takes effect September 1, 2011.