Commission Agenda Item No. 7
Presenter: Mischelle Diaz
Action
Implementation of Legislation during the 87th Texas Legislative Session
Senate Bill 15 – Recommended Adoption of the Texas Consumer Privacy Act Phase I
August 26, 2021
I. Executive Summary: With this item, the staff seeks adoption of proposed repeals and an amendment to rules governing the use of personal customer information. The repeals and amendment are necessary as a result of the enactment of Senate Bill (S.B.) 15 by the 87th Texas Legislature (2021), which (among other things) eliminated certain discretionary authority regarding the Texas Parks and Wildlife Department’s (TPWD) treatment of personal customer information, making several of the TPWD’s current rules moot.
II. Discussion: S.B. 15 amended Texas Parks and Wildlife Code, Chapter 11, to prohibit the name, address, and telephone, social security, driver’s license, bank account, credit card, or charge card number of a person who purchases customer products, licenses, or services from TPWD from being sold, rented, or traded. Therefore, certain TPWD rules regarding the use of personal customer information are no longer applicable and must be repealed. Additionally, it is necessary to amend an existing rule to conform with the directives of the legislature regarding the use and release of personal customer information.
At the Work Session meeting on May 26, 2021, the staff was authorized to publish proposed rules in the Texas Register for public comment as necessary to implement legislation from the most recent session of the Texas Legislature. The proposed rules appeared in the July 23, 2021 issue of the Texas Register (46 TexReg 4439). A summary of public comment on the proposed rule will be presented at the time of the hearing.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts the repeal of 31 TAC §§51.300, 51.302, and 51.304-51.306 and an amendment to §51.303, concerning Disclosure of Information, with changes as necessary to the proposed text as published in the July 23, 2021 issue of the Texas Register (46 TexReg 4439).”
Attachment – 1
Commission Agenda Item No. 7
Exhibit A
REGULATIONS REQUIRED OR AUTHORIZED BY LEGISLATION
SENATE BILL 15 — DISCLOSURE OF PERSONAL CUSTOMER INFORMATION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §§51.300-51.302 and 51.304-51.306 and an amendment to 31 TAC §51.303, concerning Disclosure of Information. Senate Bill 15, enacted by the most recent session of the Texas Legislature, amended the Parks and Wildlife Code, §11.030 to proscribe the use and release of customer personal information except as authorized by Parks and Wildlife, §11.030, which makes the department rules regarding customer information either redundant or no longer statutorily permissible. However, Parks and Wildlife Code, §11.030, continues to require the department to adopt a policy regarding the use and release of customer information by rule. Therefore, the department proposes the repeal of the current rules and the replacement of the repealed rules with a single provision stating that the department’s policy regarding the release of personal customer information is to comply with the statutory provisions of Parks and Wildlife Code, §11.030, and any other applicable law. The proposed amendment also would change the title of the section to more accurately reflect the subject matter addressed by the rule.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the repeals and rule as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.
3. Public Benefit/Cost Note.
Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be compliance with the statutory directives of the legislature.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the rules as proposed implement legislation that the commission cannot eliminate or modify, any adverse economic effects on small businesses, microbusinesses, or rural communities is thus a result of the legislation and not a result of the rules. On this basis, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create, eliminate, or expand a regulation;
(6) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Mischelle Diaz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4557; email: Mischelle.diaz@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The repeals are proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release and use of customer information by rule.
The proposed repeals affect Parks and Wildlife Code, Chapter 11.
6. Repeals.
The repeals are proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release and use of customer information by rule.
The proposed repeals affect Parks and Wildlife Code, Chapter 11.
§51.300. Definitions.
§51.301. Duties of the Department.
§51.302. Applicability.
§51.304. Exceptions.
§51.305. Price
§51.306. Procedure.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
7. Rule Text.
The amendment is proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release and use of customer information by rule.
The proposed amendment affects Parks and Wildlife Code, Chapter 11.
§51.303. Disclosure of Personal Customer Information. It is the policy of the department to use and release personal customer information only in accordance with the provisions of Parks and Wildlife Code, §11.030 and any other applicable provision of law.
[(a) Except as provided in this subchapter, the department will not disclose the following information, unless otherwise required by law:]
[(1) personal information;]
[(2) recreational customer information; or]
[(3) confidential customer information.]
[(b) Except as provided in this subchapter, the department will disclose, sell, rent or trade the following information, unless the information is also confidential customer information or disclosure is otherwise prohibited by law:]
[(1) nonrecreational customer information; and]
[(2) magazine customer information.]
[(c) The department will disclose information regarding a corporation, partnership or commercial enterprise, unless otherwise prohibited by law.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on