This Week in Dover

By Tyler Micik

The General Assembly returned to session this week and several bills the State Chamber is engaged on saw movement.

Of note, HB104 passed the Senate and now moves to the Governor for signature. The bill accelerates the process for economic development projects in Delaware with some exemptions from the PLUS process. A project located in Investment Level 1 or 2 under the Strategies for State Policies and Spending that is consistent with local zoning and any local comprehensive plan that will create full-time jobs is exempt from the pre-application process unless required by the local government or requested by the applicant.

The bill is part of a package of four bills (HB101 – 104), sponsored by Representative Bush, which are aimed at improving and expediting the permitting process for economic development projects in the state. HB104 now joins HB102 as awaiting the Governor’s signature. The State Chamber would like to thank all the sponsors, especially Representative Bush and Senators Walsh and Mantzavinos, for their leadership and support in passing this legislation, which has been a top priority of our members.​

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The Delaware State Chamber thanks all the sponsors, especially Representative Bush and Senators Walsh and Mantzavinos, for their leadership and support in passing HB102 and HB104.

Another bill that saw movement was HB154, the Delaware Personal Data Privacy Act, which passed the House and now moves to the Senate. Two amendments, HA1 and HA4, passed with the bill. We appreciate the sponsor taking our concerns into consideration and implementing some changes to the legislation based on our feedback and others. However, the State Chamber still opposes the bill and is seeking additional amendments.

​Unlike the public sector, if a consumer doesn't like how one company is using their information, they have options to go elsewhere. It’s in the best interest of businesses to be responsible data handlers. Additionally, the Department of Justice has no data to validate a problem in the business community exists. Nor does the Department have a record of consumer complaints, or actions resulting in fines or prosecution of businesses that did not live up to their stated privacy policies. This is a staff-driven proposal that would cost businesses money, increase their exposure to lawsuits, and require the State to hire more personnel.
 
Our concerns with this proposal are the following:

• The Department of Justice and the Federal Trade Commission currently have broad authority to act if Delaware consumers have cause. The Unfair and Deceptive Trade Practices Act holds companies accountable and live up to statements and claims they make about many matters, including data practices and privacy policies.
• Most consumer data is already protected under federal and state laws. Credit and financial records, health and medical records, online data, and children are just a few examples of information that has been protected for decades.
• If passed, this would be a costly burden on any business that controls or processes the personal data of more than 35,000 consumers or controls or processes the data of more than 10,000 consumers and derives more than 20% of their gross revenue from the sale of personal data (lines 153-156).
• This bill would impose serious obligations on business. To comply, businesses may have to do things such as assess compliance and gaps, deploy data management capabilities, update privacy policies and remediate practices, develop consumer request procedure, review and update vendor and supplier agreements, implement reporting, record-keeping and training, boost data security and breach preparedness, and establish procedures for regular audits, to name a few.
• We note with appreciation that the sponsor raised the thresholds and added a gross revenue component which may help exclude smaller businesses, but we believe the thresholds are still low. Many small- to medium-sized businesses are still looped in. Small businesses that fall under this proposal will face significant challenges trying to adhere to requirements set forth in the bill. Unlike large companies, small businesses don’t have a team of privacy lawyers and experts to ensure compliance and handle consumer requests. The definition of sale is also unclear because it’s not tied to a monetary value. Instead “sale” means the exchange or transfer of personal data for monetary or other valuable consideration (lines 107-108). The term "valuable consideration" is also unclear?

• The bill inexplicably leaves out the largest collectors and sellers of personal information Delawareans encounter. By far, the largest collector of personal information of Delawareans is state and local government. And, unlike businesses where you have choices and options, individuals are compelled to give personal information to the State to obtain things like a driver’s license, a professional license to cut hair or practice law or medicine, a recreational license to fish, or a pet license. If this proposal's goal is to provide Delawareans with information and control over how their personal data is being used, it should grant them access and control over their data that's being collected and sold by the State.

HS1 for HB160 was pulled from Thursday’s House agenda. The substitute was introduced on Tuesday, released from House committee on Wednesday, and scheduled to be heard on the House floor Thursday. The bill would impose a 60-cent surcharge per line, per month on residential, business, wireless, and nontraditional services to help address suicide by creating a well-functioning 988 system that may help support individuals having trouble. While we recognize the importance of mental health, the State Chamber has concerns around the surcharge amount, number of lines, and broad scope of the bill.

Other bills that saw movement included:

• HS1 for HB98 (Notice Requirements for DNREC Permits) - Status: Released from House Natural Resources & Energy and now placed on the House Ready List. State Chamber Position: Monitoring​
• HB168 (Short-Term Rental Tax) - Status: Released from House Revenue & Finance and now placed on the House Ready List. State Chamber Position: Support
• HB171 (Title V Operating Permit Program) - Status: ​Released from House Natural Resources & Energy and now placed on the House Ready List. State Chamber Position: Support
• HB175 (Accessible Parking Spaces) - Status: Released from House Health & Human Development Committee and now placed on the House Ready List. State Chamber Position: Opposed and seeking amendments.
• SS2 for SB72 (Tax Deduction for Membership Dues) - Status: Released from House Revenue & Finance and assigned to House Appropriations. State Chamber Position: Opposed
• SS1 for SB102 (Prevailing Wage) - Status: Released from House Labor Committee and assigned to House Appropriations. State Chamber Position: Opposed
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The General Assembly will return next week with just nine session days remaining. If you have feedback on any of these bills, please let me know.