Texas 2011 - 82nd Regular

Texas House Bill HB1137 Compare Versions

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1	1	By: Darby, et al. (Senate Sponsor - Estes) H.B. No. 1137
2	2	(In the Senate - Received from the House April 26, 2011;
3	3	May 5, 2011, read first time and referred to Committee on Criminal
4	4	Justice; May 19, 2011, reported favorably by the following vote:
5	5	Yeas 7, Nays 0; May 19, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the transmission of records regarding over-the-counter
11	11	sales of ephedrine, pseudoephedrine, and norpseudoephedrine and a
12	12	person's civil liability for certain acts arising from the sale of
13	13	those products.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Section 486.001(a), Health and Safety Code, is
16	16	amended by adding Subdivision (6) to read as follows:
17	17	(6) "Real-time electronic logging system" means a
18	18	system intended to be used by law enforcement agencies and
19	19	pharmacies or other business establishments that:
20	20	(A) is installed, operated, and maintained free
21	21	of any one-time or recurring charge to the business establishment
22	22	or to the state;
23	23	(B) is able to communicate in real time with
24	24	similar systems operated in other states and similar systems
25	25	containing information submitted by more than one state;
26	26	(C) complies with the security policy of the
27	27	Criminal Justice Information Services division of the Federal
28	28	Bureau of Investigation;
29	29	(D) complies with information exchange standards
30	30	adopted by the National Information Exchange Model;
31	31	(E) uses a mechanism to prevent the completion of
32	32	a sale of a product containing ephedrine, pseudoephedrine, or
33	33	norpseudoephedrine that would violate state or federal law
34	34	regarding the purchase of a product containing those substances;
35	35	and
36	36	(F) is equipped with an override of the mechanism
37	37	described in Paragraph (E) that:
38	38	(i) may be activated by an employee of a
39	39	business establishment; and
40	40	(ii) creates a record of each activation of
41	41	the override.
42	42	SECTION 2. Section 486.014, Health and Safety Code, is
43	43	amended to read as follows:
44	44	Sec. 486.014. PREREQUISITES TO AND RESTRICTIONS ON SALE.
45	45	(a) Before completing an over-the-counter sale of a product
46	46	containing ephedrine, pseudoephedrine, or norpseudoephedrine, a
47	47	business establishment that engages in those sales shall:
48	48	(1) require the person making the purchase to:
49	49	(A) display a driver's license or other form of
50	50	government-issued identification containing the person's
51	51	photograph and indicating that the person is 16 years of age or
52	52	older; and
53	53	(B) sign for the purchase;
54	54	(2) make a record of the sale, including the name and
55	55	date of birth of the person making the purchase, the address of the
56	56	purchaser, the date and time of the purchase, the type of
57	57	identification displayed by the person and the identification
58	58	number, and the item and number of grams purchased; and
59	59	(3) transmit the record of sale as required by Section
60	60	486.0141.
61	61	(b) A business establishment may not sell to [take actions
62	62	necessary to prevent] a person who makes over-the-counter purchases
63	63	of one or more products containing ephedrine, pseudoephedrine, or
64	64	norpseudoephedrine:
65	65	(1) within any calendar day, [from obtaining from the
66	66	establishment in a single transaction] more than 3.6[:
67	67	[(A) two packages of those products; or
68	68	[(B) six] grams of ephedrine, pseudoephedrine,
69	69	norpseudoephedrine, or a combination of those substances; and
70	70	(2) within any 30-day period, more than nine grams of
71	71	ephedrine, pseudoephedrine, norpseudoephedrine, or a combination
72	72	of those substances.
73	73	SECTION 3. Subchapter B, Chapter 486, Health and Safety
74	74	Code, is amended by adding Sections 486.0141, 486.0142, 486.0143,
75	75	486.0144, 486.0145, and 486.0146 to read as follows:
76	76	Sec. 486.0141. TRANSMISSION OF SALES INFORMATION TO
77	77	REAL-TIME ELECTRONIC LOGGING SYSTEM. (a) Before completing an
78	78	over-the-counter sale of a product containing ephedrine,
79	79	pseudoephedrine, or norpseudoephedrine, a business establishment
80	80	that engages in those sales shall transmit the information in the
81	81	record made under Section 486.014(a)(2) to a real-time electronic
82	82	logging system.
83	83	(b) Except as provided by Subsection (c), a business
84	84	establishment may not complete an over-the-counter sale of a
85	85	product containing ephedrine, pseudoephedrine, or
86	86	norpseudoephedrine if the real-time electronic logging system
87	87	returns a report that the completion of the sale would result in the
88	88	person obtaining an amount of ephedrine, pseudoephedrine,
89	89	norpseudoephedrine, or a combination of those substances greater
90	90	than the amount described by Section 486.014(b), regardless of
91	91	whether all or some of the products previously obtained by the buyer
92	92	were sold at the establishment or another business establishment.
93	93	(c) An employee of a business establishment may complete a
94	94	sale prohibited by Subsection (b) by using the override mechanism
95	95	described by Section 486.001(a)(6)(F) only if the employee has a
96	96	reasonable fear of imminent bodily injury or death from the person
97	97	attempting to obtain ephedrine, pseudoephedrine, or
98	98	norpseudoephedrine.
99	99	(d) On request of the Department of Public Safety, the
100	100	administrators of a real-time electronic logging system shall make
101	101	available to the department a copy of each record of an
102	102	over-the-counter sale of a product containing ephedrine,
103	103	pseudoephedrine, or norpseudoephedrine that is submitted by a
104	104	business establishment located in this state.
105	105	Sec. 486.0142. TEMPORARY EXEMPTION. (a) On application by
106	106	a business establishment that operates a pharmacy and engages in
107	107	over-the-counter sales of products containing ephedrine,
108	108	pseudoephedrine, or norpseudoephedrine as authorized by Section
109	109	486.011, the State Board of Pharmacy may grant that business
110	110	establishment a temporary exemption, not to exceed 180 days, from
111	111	the requirement of using a real-time electronic logging system
112	112	under this chapter.
113	113	(b) On application by a business establishment that engages
114	114	in over-the-counter sales of products containing ephedrine,
115	115	pseudoephedrine, or norpseudoephedrine in accordance with a
116	116	certificate of authority issued under Section 486.012, the
117	117	department may grant that business establishment a temporary
118	118	exemption, not to exceed 180 days, from the requirement of using a
119	119	real-time electronic logging system under this chapter.
120	120	(c) A business establishment granted a temporary exemption
121	121	under this section must keep records of sales in the same manner
122	122	required under Section 486.0143 for a business establishment that
123	123	experiences a mechanical or electronic failure of the real-time
124	124	electronic logging system.
125	125	(d) An exemption granted under this section does not relieve
126	126	a business establishment of any duty under this chapter other than
127	127	the duty to use a real-time electronic logging system.
128	128	Sec. 486.0143. WRITTEN LOG OR OTHER ELECTRONIC
129	129	RECORDKEEPING. If a business establishment that engages in
130	130	over-the-counter sales of a product containing ephedrine,
131	131	pseudoephedrine, or norpseudoephedrine experiences a mechanical or
132	132	electronic failure of the real-time electronic logging system, the
133	133	business shall:
134	134	(1) maintain a written record or an electronic record
135	135	made by any means that satisfies the requirements of Section
136	136	486.014(a)(2); and
137	137	(2) enter the information in the real-time electronic
138	138	logging system as soon as practicable after the system becomes
139	139	operational.
140	140	Sec. 486.0144. ONLINE PORTAL. The administrators of a
141	141	real-time electronic logging system shall provide real-time access
142	142	to the information in the system to the Department of Public Safety
143	143	if the department executes a memorandum of understanding with the
144	144	administrators.
145	145	Sec. 486.0145. LIMITATION ON CIVIL LIABILITY. A person is
146	146	not liable for an act done or omission made in compliance with the
147	147	requirements of Section 486.014 or 486.0141.
148	148	Sec. 486.0146. PRIVACY PROTECTIONS. (a) The privacy
149	149	protections provided an individual under 21 C.F.R. Section 1314.45
150	150	apply to information entered or stored in a real-time electronic
151	151	logging system.
152	152	(b) A business establishment that engages in
153	153	over-the-counter sales of a product containing ephedrine,
154	154	pseudoephedrine, or norpseudoephedrine may disclose information
155	155	entered or stored in a real-time electronic logging system only to
156	156	the United States Drug Enforcement Administration and other
157	157	federal, state, and local law enforcement agencies.
158	158	(c) A business establishment that engages in
159	159	over-the-counter sales of a product containing ephedrine,
160	160	pseudoephedrine, or norpseudoephedrine may not use information
161	161	entered or stored in a real-time electronic logging system for any
162	162	purpose other than for a disclosure authorized by Subsection (b) or
163	163	to comply with the requirements of this chapter.
164	164	(d) Notwithstanding Subsection (c), a business
165	165	establishment that engages in over-the-counter sales of a product
166	166	containing ephedrine, pseudoephedrine, or norpseudoephedrine or an
167	167	employee or agent of the business establishment is not civilly
168	168	liable for the release of information entered or stored in a
169	169	real-time electronic logging system unless the release constitutes
170	170	negligence, recklessness, or wilful misconduct.
171	171	SECTION 4. Section 486.015, Health and Safety Code, is
172	172	amended to read as follows:
173	173	Sec. 486.015. MAINTENANCE OF RECORDS. (a) Except as
174	174	provided by Subsection (b), a [The] business establishment shall
175	175	maintain each record made under Section 486.014(a)(2) [486.014(2)]
176	176	until at least the second anniversary of the date the record is made
177	177	and shall make each record available on request by the department or
178	178	any local, state, or federal law enforcement agency, including the
179	179	United States Drug Enforcement Administration [the Department of
180	180	Public Safety].
181	181	(b) Subsection (a) does not apply to a business
182	182	establishment that has used a real-time electronic logging system
183	183	for longer than two years.
184	184	(c) A business establishment that has used a real-time
185	185	electronic logging system for longer than two years shall destroy
186	186	all paper records maintained under this section unless the
187	187	destruction is otherwise prohibited by law.
188	188	SECTION 5. Not later than September 30, 2011, the Texas
189	189	State Board of Pharmacy and the Department of State Health Services
190	190	shall provide to the administrators of any real-time electronic
191	191	logging system described by Subchapter B, Chapter 486, Health and
192	192	Safety Code, as amended by this Act, the names, addresses, and phone
193	193	numbers of all business establishments engaging in
194	194	over-the-counter sales of products containing ephedrine,
195	195	pseudoephedrine, and norpseudoephedrine.
196	196	SECTION 6. (a) The changes in law made by this Act apply
197	197	only to an over-the-counter sale of a product containing ephedrine,
198	198	pseudoephedrine, or norpseudoephedrine that is completed on or
199	199	after January 1, 2012. An over-the-counter sale of a product
200	200	containing ephedrine, pseudoephedrine, or norpseudoephedrine that
201	201	was completed before January 1, 2012, is covered by the law in
202	202	effect when the sale was completed, and the former law is continued
203	203	in effect for that purpose.
204	204	(b) A business establishment is not required to use a
205	205	real-time electronic logging system required by Subchapter B,
206	206	Chapter 486, Health and Safety Code, as amended by this Act, before
207	207	January 1, 2012.
208	208	SECTION 7. This Act takes effect September 1, 2011.
209	209	* * * * *