PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 59. CONTINUING EDUCATION REQUIREMENTS
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 59, §59.3, regarding the Continuing Education Requirements, without changes to the proposed text as published in the April 7, 2023, issue of the Texas Register (48 TexReg 1795). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 59, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation.
The adopted rule is necessary to implement rules being concurrently adopted which removed the requirement for registered accessibility specialists to meet continuing education requirements with an approved course provider. The adopted rules modify the list of occupations which are subject to the continuing education requirements of 16 TAC, Chapter 59, by removing registered accessibility specialists.
SECTION-BY-SECTION SUMMARY
The adopted rule amends §59.3, to remove registered accessibility specialists from the list of licensees that must comply with continuing education provider requirements.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 7, 2023, issue of the Texas Register (48 TexReg 1795). The public comment period closed on May 8, 2023. The Department did not receive any comments from interested parties on the proposed rules.
COMMISSION ACTION
At its meeting on August 1, 2023, the Commission adopted the proposed rules as published in the Texas Register.
STATUTORY AUTHORITY
The adopted rule is adopted under Texas Occupations Code, Chapter 51, and Texas Government Code, Chapter 469, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapter 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rule.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302944
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 68, Subchapter H, §68.90; adopts new rules at Subchapter A, §68.11 and §68.12; Subchapter B, §68.22 and §68.31; and Subchapter C, §68.40; and adopts the repeal of existing rules at §§68.31, 68.51 - 68.54, 68.73, 68.74, 68.79, 68.100, and 68.101, regarding the Elimination of Architectural Barriers program; and the addition of subchapter titles to the existing chapter, without changes to the proposed text as published in the April 7, 2023, issue of the Texas Register (48 TexReg 1797). These rules will not be republished.
The Commission also adopts amendments to existing rules at 16 TAC Chapter 68, Subchapter A, §68.10; Subchapter B, §68.20 and §60.30; Subchapter D, §68.50; and Subchapter F, §§68.70, 68.75 and 68.76; and Subchapter H, §68.93; and adopts new rules at Subchapter B, §68.21; Subchapter C, §68.41 and §68.42; Subchapter D, §§68.51 - 68.53; and Subchapter F, §§68.73, 68.74 and 68.77, regarding the Elimination of Architectural Barriers program, with changes to the proposed text as published in the April 7, 2023, issue of the Texas Register (48 TexReg 1797). These rules will be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 68, implement Texas Government Code, Chapter 469.
The adopted rules implement changes suggested during the internal four-year rule review, incorporate department procedures for registered accessibility specialists, amend outdated rule language, and restructure the existing rules for better organization for the reader. The adopted rules also update the topics required and allowed for continuing education hours to provide additional options for licensees.
The adopted rules are necessary to establish requirements regarding accessibility to the public, registered accessibility specialists, building and facility owners, and design professionals.
SECTION-BY-SECTION SUMMARY
The adopted rules create new Subchapter A, General Provisions, which includes §68.1 and §§68.10 - 68.12.
The adopted rules amend §68.10, Definitions. The adopted rules add the definitions "day," "Department," "person," "project file," and "Texas Architectural Barriers Online System (TABS);" and amend the definitions of "owner" and "public entity" for clarity. The adopted rules also remove definitions that are not used in the chapter or otherwise have common meanings, including "commerce," "contract provider," "registered building or facility," "rules," "state agency," and "variance application." The adopted rules include Advisory Committee recommended changes to the published rule text at paragraph (5); the Committee recommended that the proposed changes to the term "completion of construction" not be adopted. The adopted rules also include Advisory Committee recommended changes to the published rule text at paragraphs (28) and (29) to correct numbering.
The adopted rules add new §68.11, Technical Standards and Technical Memoranda. The adopted rules adopt by reference the 2012 Edition of the Texas Accessibility Standards and authorize the department to publish memoranda for clarification of technical matters. The adopted rule was previously in §68.100, "Technical Standards and Technical Memoranda," which is adopted for repeal.
The adopted rules add new §68.12, Forms. The adopted rules provide that only forms issued by the department and submitted as prescribed will be accepted. The adopted rules also provide the limitations and penalties for use of non-authorized forms submitted to the department.
The adopted rules create new Subchapter B, Registration Requirements; Exemptions, which includes §§68.20 - 68.22, 68.30 and 68.31.
The adopted rules amend §68.20, Buildings and Facilities Subject to Compliance with the Texas Accessibility Standards (TAS). The adopted rules retitle the section to "Buildings and Facilities Subject to Compliance," update the language to reflect current terminology and also adds (c)(13) related to residential amenity spaces open to the public and (c)(14) related to temporary and emergency construction. The adopted rules add subsection (a) to clarify that all buildings or facilities listed in §68.20 are subject to compliance; move the exemption for establishments occupied as a related to primary residences to §68.30, Exemptions; and move the option to registration and review of projects with an estimated cost of less than $50,000 to adopted new §68.21, Registration of Project or Lease Required. The adopted rules include Advisory Committee recommended changes to the published rule text at former proposed subsection (c)(14) to remove provisions related to pedestrian elements.
The adopted rules add new §68.21, Registration of Project or Lease Required. The adopted rules centralize the registration requirements for all projects and state leases subject to the Act. As discussed above, the adopted rules provide the option to register projects with an estimated construction cost of less than $50,000.
The adopted rules add new §68.22, State Leases. The adopted rules relocate the requirements from §68.101, which is adopted for repeal. The adopted rules include subsection (a) to provide that state leased buildings or facilities with annual lease expenses of $12,000 or more must be registered with the Department; subsection (b) to indicate the requirements that a leased building must comply with; and subsection (c) to prohibit a registered accessibility specialist from performing inspection services on a building subject to a state lease.
The adopted rules amend §68.30, Exemptions. The adopted rules add paragraph (5) to create an exemption for establishments that serve as the primary residence of the proprietor.
The adopted rules repeal current §68.31, Variance Procedures, and add new §68.31, with the same section title. The adopted rules clarify the process an owner or owner's designated must follow to apply for a variance or appeal the denial of a variance request.
The adopted rules create new Subchapter C, Owner Responsibilities, which include §§68.40 - 68.42.
The adopted rules add new §68.40, Owner Responsibilities. The adopted rules include section (a) which requires an owner to comply with the Act, TAS, and the chapter, if the owner has a construction project with an estimated construction cost of $50,000 or more; (b) centralize the responsibilities of an owner in subsection to notify the department of changes; (c) report a change in the estimated date of completion; (d) submit a response to an inspection report when corrective modifications are required and complete them in a prescribed time; and (e) submit construction documents, if applicable.
The adopted rules add new §68.41, Inspection Required. The adopted rules require an owner to (a) have a project inspected by a registered accessibility specialist no later than a year from completion of construction; (b) request an inspection in writing; and (c) be present or have an agent or representative onsite during the inspection.
The adopted rules add new §68.42, Designated Agent. The adopted rules (a) specify the process an owner must follow to designate an agent and (b) clarify the role of a designated agent who is authorized to act on behalf of the owner. The adopted rules include Advisory Committee recommended changes to the published rule text at subsections (a) and (b) to combine the subsections; the remaining subsections have been re-lettered.
The adopted rules create new Subchapter D, Construction Documents; Inspections; and Compliance, which includes §§68.50 - 68.53.
The adopted rules amend §68.50, Submission of Construction Documents. The adopted rules amend the rules for clarity; eliminate requirements which are now unnecessary due to the online registration system; and add subsection (d) to provide notice that construction documents submitted to the department are department property. The adopted rules also include Advisory Committee recommended changes to the published rule text at subsection (b) to clarify that an owner must submit construction documents to a registered accessibility specialist prior to commencement of construction in unincorporated areas (extraterritorial jurisdictions) that don't issue building permits.
The adopted rules repeal §68.51, Review of Construction Documents, and add new §68.51, Plan Review Requirements. The new adopted rules (a) establish the requirements for a registered accessibility specialist to perform a review; (b) specify the process for review of revised or supplemental documents submitted by an owner; (c) set the timeline for providing plan review findings; and (d) outline the items that must be in a plan review or plan revision review report. The adopted rules include Advisory Committee recommended changes to the published rule text at subsections (a), (b), and (d), to correct the term "plan revision review." The adopted rules also include Advisory Committee recommended changes to the published rule text at subsection (b) to require an owner to verify the date of construction completion in writing at the time of submission of revised or supplemental documents.
The adopted rules repeal §68.52, Inspections, and add new §68.52, Inspections and Corrective Modifications. The adopted rules (a) set requirements a registered accessibility specialist must comply with prior to an inspection, (b) specify requirements for an inspection to be valid, (c) set the items that must be included in an inspection report, (d) outline steps an owner must take if corrective modifications are required, and (e) set the time a response must be submitted in TABS. The adopted rules include Department recommended changes to published rule text at subsection (d) to clarify that the owner must submit the response to the inspection report directly to the registered accessibility specialist.
The adopted rules repeal §68.53, Corrective Modifications Following Inspection, and add new §68.53, Transmittal Letters. The adopted rules (a) set the timeline for providing a transmittal letter to an owner and (b) specify the items that must be included in a transmittal letter.
The adopted rules repeal §68.54, as the text is duplicative to provisions in adopted new §68.52, Inspections and Corrective Modifications.
The adopted rules create new Subchapter E, Advisory Committee, which includes §68.65.
The adopted rules create new Subchapter F, Registered Accessibility Specialists, which includes §68.70 and §§68.73 - 68.77. The adopted rules include Advisory Committee recommended changes to the published rule text to make a clerical correction to the title of the new Subchapter F.
The adopted rules amend §68.70, Registered Accessibility Specialists--Qualifications for Certification, with a change to the title of the section to Registered Accessibility Specialist Certification--Eligibility Qualifications, and Application Requirements. The adopted rules standardize the language and form for certification with other department rules.
The adopted rules repeal §68.73, Registration Requirements-Renewal, and replace it with new §68.73, Registered Accessibility Specialist Certification--Renewal Requirements. The adopted rules prescribe the process for renewal of a certification and standardize language and form for renewals with other department rules. The adopted rules include Advisory Committee recommended changes to the published rule text at subsection (a)(3) to correct a clerical error.
The adopted rules repeal §68.74, Continuing Education, and add new §68.74, with the same section title. The adopted rules provide (a) that a registered accessibility specialist must complete four hours of continuing education prior to license renewal, (b) the list of topics that meet eligibility requirements for continuing education, (c) that a registered accessibility specialist must certify completion of hours at the time of renewal, and (d) the timeline for completion of continuing education hours prior. The adopted rules also (e) limit credit for continuing education to completion of a course once per one-year period, (f) require a registered accessibility specialist to maintain a copy of their records of completion, and (g) set an effective date for application of the rule. The adopted rules also include Department recommended changes to the published text at subsections (c)-(g) to correct numbering.
The adopted rules amend §68.75, Responsibilities of the Registered Accessibility Specialist. The adopted rules (a) set the deadline for a registered accessibility specialist to submit received fees to the department, (b) require a registered accessibility specialist to secure written authorization prior to performing services, (c) set records retention timelines, and (d) prescribe timelines for uploading a change to the estimated date of completion of construction. The adopted rules include Department recommended changes to the published rule text at subsection (e) to clarify the registered accessibility specialist's duty.
The adopted rules amend §68.76, Standards of Conduct. The adopted rules update language throughout the section, and clarify the requirements in subsections (b) and (c). The adopted rules also include Advisory Committee recommended changes to the published rule text at subsection (c)(3) which provide that non-design related review services are not consulting or professional services.
The adopted rules add new §68.77, Shared Services. The adopted rules (a) authorize a registered accessibility specialist to engage another registered accessibility specialist to assist in providing services to an owner and (b) outline the requirements each much comply with under the section.
The adopted rules repeal §68.79, Contract Providers, as this license type is not issued by the department.
The adopted rules create new Subchapter G, Fees, which includes §68.80.
The adopted rules create new Subchapter H, Enforcement, which includes §68.90 and §68.93.
The adopted rules amend §68.90, Administrative Sanctions or Penalties. The adopted rules remove the term "procedures" from subsection (a); and remove the terms "contract provider" and "department employee" in subsection (b).
The adopted rules amend §68.93, Complaints, Investigations, and Audits. The adopted rules amend subsection (b) by removing the term "contract providers," and adding that owners are also subject to the Act and chapter 68. The adopted rules update subsection (c) to reflect technological changes related to TABS and provide that records may be submitted in a time prescribed by the department.
The adopted rules repeal §68.100, Technical Standards and Technical Memoranda, which has been reproposed and renumbered as discussed above.
The adopted rules create new Subchapter I, General Technical Requirements, which includes §§68.102-68.104.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 7, 2023, issue of the Texas Register (48 TexReg 1797). The public comment period closed on May 8, 2023. The Department received comments from eight interested parties on the proposed rules. The public comments are summarized below.
Comment: The Department received a comment submitted by an individual opposed to §68.52 but was otherwise in support of the proposed rules. The individual submitted a question regarding a definition in §68.52(b) regarding the presence of a representative of an owner. Specifically, the individual opposed the requirement in §68.52(d) for the owner to submit a response to the inspection report to the registered accessibility specialist as it may cause issues with monitoring if an owner fails to comply.
Department Response: The Department thanks the individual for their support and comments. The Department will not respond to the question presented by the individual regarding §68.52(b) but is available to provide technical assistance. The Department has updated the language in §68.52(d) to reflect that the responsibility of submitting the form is on the owner. The Department will continue to maintain discussions with the industry and owners to ensure that the intent of the rule is met.
Comment: The Department received a comment submitted by an individual regarding §68.76(c), conflict of interest provisions. The individual expressed concerns about the fact that a registered accessibility specialist is often engaged by multiple parties at different stages of a project and subsection (2) would require disclosure to each party. Additionally, the individual proposed that subsection (3) should be clarified or removed from the proposed changes due to the potential limitations it may place on a registered accessibility specialist who reviews reports for a project.
Department Response: The Department appreciates the individual's concerns and suggestions. Subsection 68.76(c)(3) has been changed to clarify that non-design related review services are not consulting or professional services for purposes of this section.
Comment: The Department received a submission an individual that was non-responsive to the substance of the proposal.
Department Response: The Department notes that the individual's comment is unrelated to the proposal and will not be addressed in this preamble. The Department did not make any changes to the proposed rules in response to this submission.
Comment: The Department received three comments from an individual regarding §§68.20, 68.73, and 68.76.
The individual submitted comments regarding §68.20(c)(14), pedestrian elements. The individual suggested requiring compliance with TAS for all rights of ways and easements for public use, regardless of when they become public property, which can be unclear.
The individual submitted comments regarding the number of hours required for continuing education in §68.73(a)(3).
The individual submitted comments regarding §68.76(c)(3) related to the prohibition on independent third-party consulting. The individual suggested that consulting enhances public safety and should not be prohibited.
Department Response: The Department thanks the individual for their comments. The Department will address each comment in order, separately.
The Department appreciates the industry insight on the application of the addition of pedestrian elements of the proposed rules. The Department has withdrawn former proposed §68.20(c)(14), related to pedestrian elements, from the proposed rules to allow further discussion with industry stakeholders and the Advisory Committee.
The Department appreciates the comment regarding the hours required for continuing education and has made an administrative correction to the proposed rules to change the number of hours required from eight to four to ensure consistency with new proposed §68.74.
The Department appreciates the insight on the application of §68.76(c)(3) and the use of third-party consultants as they apply to the proposed rules. As noted above, §68.76(c)(3) has been changed to clarify that non-design related review services are not consulting or professional services for purposes of this section.
Comment: The Department received five comments from an individual regarding §§68.10, 68.42, 68.50, 68.51, and 68.76. The individual also commented regarding the misspelling of the title of "Subchapter F. Registered Accessibility Specialists."
The individual submitted a comment regarding the term of "completion of construction" as defined in §68.10(5). Specifically, the individual notes that the proposed language will limit options and recourse in the event violations are discovered after a contractor has been paid.
The individual submitted non-substantive formatting suggestions regarding §68.42.
The individual submitted comments regarding §68.50(b), Submission of Construction Documents. The individual notes that clarification is needed in the event there is not a design professional and there is no authority with jurisdiction that issues building permits.
The individual submitted comments regarding §68.51, Plan Review Requirements, related to the use of the term "review" in conjunction with "plan revision."
The individual noted that the title of Subchapter F is misspelled.
Department Response: The Department thanks the individual for their comments. The Department will address each comment in order, separately.
The Department appreciates insight on the application of the proposed change to the definition of "completion of construction." The Department has withdrawn proposed changes to §68.10(5) to allow further discussion with industry stakeholders and the Advisory Committee.
The Department appreciates the comments regarding §68.42 and has changed the proposed rule to reflect the formatting suggestions and renumbered the rule accordingly.
The Department appreciates insight on the application of the proposed rule text at §68.50(b) and has made changes to address situations when there is an unincorporated portion of a county that does not issue building permits.
The Department appreciates the suggestion regarding the use of the term "plan revision review" and has made non-substantive changes throughout §68.51 to correct references to the proposed term "plan revision."
The Department thanks the commenter for their observation and has made the correction to the title of Subchapter F.
Comment: The Department received a comment from the Accessibility Professionals Association (APA). The APA's comment included multiple subparts regarding §§68.10, 68.11, 68.20, 68.40, 68.52, 68.73, 68.74, and 68.76. Additionally, the APA commented regarding the Department's local employment impact statement; public benefit statement; and fiscal impact on small businesses, micro-businesses, and rural communities, all of which are contained in the preamble of the proposed rules.
The APA states that reducing continuing education units (CEUs) will have a financial impact on companies providing continuing education.
The APA states that reducing the number of hours will result in persons who perform at a lower quality and removing the requirement for approval of CEUs will open the door to fraud and eliminate quality control.
The APA states that reducing CEUs will impact the economy of continuing education providers.
The APA submitted comments regarding the term of "completion of construction" in §68.10(5), noting that the time of final payment may be hard to track and is not publicly available to all parties.
The APA submitted comments regarding §68.11, recommending that all technical memorandums be reviewed by the Advisory Committee prior to issuance.
The APA submitted comments regarding §68.20(14) related to pedestrian elements. Specifically, the APA points out that it is difficult to ascertain future ownership at the time of registration making compliance problematic.
The APA submitted questions seeking clarification regarding §68.40, related to an owner's responsibilities.
The APA submitted a comment regarding §68.52, Inspections and Corrective Modifications, specifically recommending that a contractor, tenant, or other individual who may not represent the owner but is onsite be authorized to sign as a witness during an inspection.
The APA submitted comments regarding the number of hours required for continuing education in §68.73(a)(3).
The APA submitted a comment on §68.74 recommended that the number of required continuing education hours in the proposed rule text be increased to eight hours.
The APA submitted a comment regarding §68.76(c)(2). The APA expressed concerns about the fact that a registered accessibility specialist is often engaged by multiple parties at different stages of a project and subsection (2) would require disclosure to each party.
The APA submitted multiple observations and questions regarding §68.76(c)(3) relating to conflict of interest.
Department Response: The Department thanks APA for its extensive review and comments. The Department will address each comment in order, separately.
The Department appreciates industry input and understands that companies may be impacted but disagrees with this comment; however, this number cannot be quantified and registered accessibility specialists will still be required to obtain four hours of continuing education credits. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates industry input but disagrees with this comment. Registered accessibility specialists will have the opportunity to seek training from a broader number of providers based on the selected topics listed in §68.74. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the contribution that continuing education providers have on the EAB community, however it disagrees with the comment based on its analysis. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates insight on the application of the proposed change to the definition of "completion of construction." As noted above, the Department has withdrawn proposed changes to §68.10(5) to allow further discussion with industry stakeholders and the Advisory Committee.
The Department recognizes the need for industry input when drafting guidance, rules, and other technical documents. The Department works closely with workgroups and consults with its Advisory Committee members, as needed. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the industry insight on the application of the addition of pedestrian elements of the proposed rules. As stated above, Department has withdrawn former proposed §68.20(c)(14), related to pedestrian elements, to allow further discussion with industry stakeholders and the Advisory Committee.
The Department notes that the APA's submission regarding §68.40 is not a comment on the proposal but a request for clarification. Technical guidance will be provided by program staff. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the comment regarding §68.52 related to persons authorized to sign a Proof of Inspection Form but disagrees with the suggested change. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the comment regarding the hours required for continuing education and as noted above, has made an administrative correction to the proposed rules to change the number of hours required from eight to four to ensure consistency with new proposed §68.74.
The Department appreciates the recommendation submitted by the APA regarding the number of continuing education hours in §68.74, however it disagrees with this change. The technical workgroup and Advisory Committee discussed and approved of the recommendation to reduce the required CEU hours. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the APA's concerns regarding §68.76(c)(2). The Advisory Board's recommended changes to proposed text at §68.76(c)(3) to clarify that non-design related review services are not consulting or professional services for purposes of this section incorporate the concerns of the APA.
The Department appreciates the analysis and review of the APA regarding §68.76. As noted above §68.76(c)(3) has been changed to clarify that non-design related review services are not consulting or professional services for purposes of this section.
Comment: The Department received a comment an individual which included multiple subparts regarding §§68.10, 68.52, 68.73, 68.75, and 68.76.
The individual submitted comments regarding the term of "completion of construction" in §68.10(5). The individual recommended the use of the definition of "substantial completion" used by the AIA when defining completion of construction.
The individual submitted a question regarding application of §68.52(d).
The individual submitted comments regarding the number of hours required for continuing education in §68.73(a)(3).
The individual submitted a question regarding §68.75(c).
The individual submitted a question regarding §68.75(e).
The individual submitted a comment regarding §68.76(c)(2). The individual expressed concerns that a registered accessibility specialist is often engaged by multiple parties at different stages of a project and subsection (2) would require disclosure to each party.
The individual submitted comments regarding §68.76(c)(3) related to the prohibition on independent third-party consulting.
Department response: The Department thanks the individual for their review and comments. The Department will address each comment in order, separately.
The Department appreciates the individual's suggestion regarding the definition of "completion of construction." As noted above, the Department has withdrawn proposed changes to §68.10(5) to allow further discussion with industry stakeholders and the Advisory Committee.
The Department notes that the individual's submission is not a comment on the proposal but a request for clarification regarding §68.52. Technical guidance will be provided by program staff. The Department did not make any changes to the proposed rules in response to this submission.
The Department appreciates the comment regarding the hours required for continuing education and as noted above, has made an administrative correction to the proposed rules to change the number of hours required from eight to four to ensure consistency with new proposed §68.74.
The Department notes that the individual's submission is not a comment on the proposal but a request for clarification regarding §68.75(c). Technical guidance will be provided by program staff. The Department did not make any changes to the proposed rules in response to this submission.
The Department notes that the individual's submission is not a comment on the proposal but a request for clarification regarding §68.75(e). However, the Department appreciates the request and did make an administrative change to the rule to clarify the responsibility of the registered accessibility specialist to update their own contact information.
The Department appreciates the individual's concerns regarding §68.76(c)(2). As noted above, proposed text at §68.76(c)(3) has been changed in the adopted rules to clarify that non-design related review services are not consulting or professional services for purposes of this section.
The Department appreciates the insight on the application of §68.76(c)(3) and the use of third-party consultants as they apply to the proposed rules. As noted above, §68.76(c)(3) has been changed in the adopted rules to clarify that non-design related review services are not consulting or professional services for purposes of this section.
ADVISORY COMMITTEE RECOMMENDATIONS AND COMMISSION ACTION
The Elimination of Architectural Barriers Advisory Committee met on June 7, 2023, to discuss the proposed rules and the public comments received. The Advisory Committee recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to existing rules at 16 TAC Chapter 68, Subchapter A, §68.10; Subchapter B, §68.20; Subchapter D, §68.50; and Subchapter F, §68.75 and §68.76; and adopts new rules at Subchapter C, §68.41 and §68.42; Subchapter D, §68.51 and §68.52; and Subchapter F, §68.73 and §68.74 made in response to public comment, Advisory Committee, and Department recommendations. At its meeting on August 1, 2023, the Commission adopted the proposed rules with changes as recommended by the Advisory Committee.
16 TAC §§68.31, 68.51 - 68.54, 68.73, 68.74, 68.79, 68.100, 68.101
STATUTORY AUTHORITY
The adopted repeals are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302951
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.10.Definitions.
The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.
(1) Act--Texas Government Code, Chapter 469, Elimination of Architectural Barriers.
(2) Alteration-- A renovation, modification, or change to a building or facility that affects or could affect the usability of the building or facility or portion thereof. Re-roofing, painting, or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
(3) Building--Any structure located in the State of Texas used or intended for supporting or sheltering any use or occupancy.
(4) Commencement of Construction--The date of placement of engineering stakes, delivery of lumber or other construction materials to the job site, erection of batter boards, formwork, or other construction related work.
(5) Completion of Construction--The date when a construction project results in occupancy or the issuance of a certificate of occupancy. For public roadway projects, completion of construction occurs upon final payment and release of the contractor performing the work or, if the work is performed by public employees, removal of barricades and opening of all traffic lanes for use.
(6) Construction Documents--Drawings, specifications, addenda, change orders, construction change directives and other supplemental documents prepared for the purpose of regulatory approval, permitting, or construction.
(7) Crosswalk--That part of a roadway where motorists are required to yield to pedestrians crossing, as defined by state and local regulations, whether marked or unmarked.
(8) Curb Line--A line that represents the extension of the face of the curb and marks the transition between the sidewalk and the gutter or roadway at a curb ramp or flush landing.
(9) Day--A calendar day.
(10) Department--The Texas Department of Licensing and Regulation.
(11) Designated Agent--An individual designated in writing by the owner to act on the owner's behalf.
(12) Element--An architectural or mechanical component of a building, facility, space, or site, e.g., telephone, curb ramp, door, drinking fountain, seating, water closet, or public right-of-way.
(13) Estimated Construction Cost--Includes all costs for construction of a project except site acquisition, architectural, engineering and consulting fees, furniture, and equipment unless the equipment is part of the mechanical, electrical, or plumbing systems.
(14) Facility--All or any portion of buildings, structures, site improvements, elements, and pedestrian routes or vehicular ways located on a site e.g. complexes, equipment, roads, walks, passageways, parking lots, or other real property subject to the Act.
(15) Housing at a Place of Education--Public or privately funded housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence.
(16) Issue--To mail, deliver, transmit, or otherwise release plans or specifications to an owner, lessee, contractor, subcontractor, or any other person acting for an owner or lessee for the purpose of construction, applying for a building permit, or obtaining regulatory approval after such plans have been sealed by an architect, registered interior designer, landscape architect, or engineer. In the case of a state-funded or other public works project, it is the time at which plans or specifications are publicly posted for bids, after such plans or specifications have been sealed by an architect, registered interior designer, landscape architect, or engineer.
(17) Overall Responsibility--The level of responsibility held by an architect, registered interior designer, landscape architect or engineer who prepares construction documents and coordinates the various aspects of the design of a building or facility.
(18) Owner--The person(s) that hold(s) title to the building or facility subject to compliance with the Act, TAS, and this chapter.
(19) Pedestrian Access Route--A continuous and unobstructed path of travel provided for pedestrians with disabilities within or coinciding with a pedestrian circulation path.
(20) Pedestrian Elements--Components that make up a pedestrian access route including, but not limited to walking surfaces, ramps, curb ramps, crosswalks, pedestrian overpasses and underpasses, automated pedestrian signals, elevators, and platform lifts.
(21) Person--An individual, corporation, partnership, or other legal entity, including a state agency or governmental subdivision.
(22) Project File--Records retained, uploaded, or submitted to TABS.
(23) Public Entity--Any state government agency or unit of local government or special purposes district.
(24) Public Right-of-Way--Public land or property, usually in interconnected corridors, that is acquired for or dedicated to transportation purposes.
(25) Registered Accessibility Specialist--An individual who is certified by the department to perform review and inspection functions of the department.
(26) Religious Organization--An organization that qualifies for an exemption from taxation, as a religious organization as provided in Texas Tax Code, Chapter 11, §11.20(c).
(27) Sidewalk--That portion of an exterior circulation path that is improved for use by pedestrians and usually paved.
(28) Texas Accessibility Standards (TAS)--The collection of scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities, periodically adopted by the Texas Commission of Licensing and Regulation.
(29) Texas Architectural Barriers Online System (TABS)--The online database for the registration of projects subject to the TAS and maintenance of project records.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302945
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
16 TAC §§68.20 - 68.22, 68.30, 68.31
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.20.Buildings and Facilities Subject to Compliance.
(a) All buildings or facilities listed under this section are subject to compliance with the Act, TAS, and this chapter, regardless of the estimated cost of construction, unless exempted under §68.30.
(b) The following buildings and facilities are subject to compliance with the Act, TAS, and this chapter:
(1) A building or facility used by a public entity if it is constructed, renovated, or modified, in whole or in part, on or after January 1, 1970, using funds from the state or a county, municipality, or other political subdivision of the state.
(2) A building or facility leased for use or occupied, in whole or in part, by the state under a lease or rental agreement entered into on or after January 1, 1972, except as modified under §68.22.
(c) The following private buildings and facilities constructed, renovated, or modified on or after January 1, 1992, and defined as a "public accommodation" by Section 301, Americans with Disabilities Act of 1990 (42 U.S.C. Section 12181), and its subsequent amendments are subject to the Act, TAS, and this chapter:
(1) A place of lodging that includes guest rooms for short-term stays of 30 days or less where the occupant does not have the right to return to a specific room or unit after the conclusion of their stay, and under conditions and with amenities similar to a hotel, motel, or inn.
(A) Amenities include:
(i) on or off-site management and reservations service;
(ii) rooms available on a walk-up or call-in basis;
(iii) available housekeeping or linen service; and
(iv) acceptance of reservations for a guest room type without guaranteeing a particular unit or room until checking in, and without prior lease or security deposit.
(B) A place of transient lodging with no more than five rooms for rent or hire that is occupied by the proprietor as the proprietor's primary residence as provided under §68.30 is not subject to this section.
(2) an establishment that serves food or drinks, including a restaurant or bar;
(3) a sports or entertainment venue, including a movie theater, concert hall, stadium, or other place of exhibition or entertainment;
(4) a public gathering venue, including an auditorium, convention center, or lecture hall;
(5) a retail establishment or shopping center;
(6) a service establishment, including a laundromat, dry-cleaner, bank, barber shop, salon, gas station, professional office, medical facility, health care provider, or hospital;
(7) a public transportation station, including a terminal or depot;
(8) a place of recreation, including a park, zoo, or amusement park;
(9) a place of public display or collection, including a museum, library or gallery;
(10) a place of education, including a day care center, elementary, secondary, undergraduate, or postgraduate private school;
(11) a social service center establishment, including a senior citizen center, homeless shelter, food bank, or adoption agency;
(12) a place of exercise or recreation, including a gymnasium, health spa, bowling alley, or golf course;
(13) a residential amenity space open to the public which is used, leased, or rented to residents, members, non-residents, or non-members; and
(14) a building or facility that is constructed, renovated, or modified on a temporary or emergency basis including workforce housing, man camps, fixed furniture systems, wall systems, and exhibit areas.
(d) A commercial facility is subject to the Act, this chapter, and compliance with TAS if it is intended for non-residential use by a private entity and its operations will affect commerce, except for railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars or any other railroad cars described in the Americans with Disabilities Act (ADA) §242, or covered under the ADA, Title III, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the federal Fair Housing Act of 1968.
(e) A building or facility of a religious organization is subject to the Act, this chapter, and compliance with TAS except for areas as provided under §68.30.
§68.21.Registration of Project or Lease Required.
(a) Projects registration required. A building or facility being constructed, renovated, or modified with an estimated construction cost of $50,000 or more that is subject to compliance with the Act, the TAS, and this chapter must be registered with the department. To register a construction project, an owner must submit:
(1) an application on a form as prescribed by the department; and
(2) the required fee in §68.80.
(b) State lease registration required. A new or renewal lease agreement for an agency of the state of Texas with annual lease expense $12,000 or more must be registered with the department. To register a lease, a state agency must submit:
(1) an application on a form as prescribed by the department; and
(2) the required fee in §68.80.
(c) Project registration optional. A building or facility being constructed, renovated, or modified with an estimated construction cost of less than $50,000 or that is not subject to the Act may be registered with the department and reviewed and/or inspected by a registered accessibility specialist.
§68.30.Exemptions.
The following buildings, facilities, spaces, or elements are exempt from the provisions of the Act:
(1) Federal Property. Buildings or facilities owned, operated, or leased by the federal government;
(2) Places Used Primarily for Religious Rituals. An area within a building or facility of a religious organization used primarily for religious ritual as determined by the owner or occupant. To facilitate the plan review, the owner or occupant shall include a clear designation of such areas with the plans submitted for review. This exemption does not apply to the following: parking facilities, accessible routes, walkways, hallways, toilet facilities, entrances, public telephones, drinking fountains, and exits;
(3) Van Accessible Parking at Garages Constructed Prior to April 1994. Parking garages where construction was started before April 1, 1994, and the existing vertical clearance of the garage is less than 98", are exempted from requirements to have van-accessible parking spaces located within the garage. If additional surface parking is provided, the required van accessible parking spaces shall be located on a surface lot in closest proximity to the accessible public entrance serving the facility;
(4) Residential Facilities. Those portions of public or privately funded apartments, condominiums, townhomes, and single-family dwellings used exclusively by residents and their guests; and
(5) Places of Primary Residence. An establishment or place of lodging that does not have more than five rooms for rent or hire and that is occupied by the proprietor as their primary residence.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302946
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.41.Inspection Required.
(a) The owner of a building or facility with a project required to be registered under §68.21 must obtain an inspection by a registered accessibility specialist no later than one year from the date of the completion of construction.
(b) A request for inspection must be in writing and submitted to a registered accessibility specialist.
(c) The owner, the owner's designated agent, or an individual representing the owner is required to be physically onsite with the registered accessibility specialist during the inspection. A physical or electronic signature must be provided by the owner or designated agent who was present during the inspection on a form prescribed by the department.
§68.42.Designated Agent.
(a) An owner may designate an agent to act on their behalf by submitting a form prescribed by the department. To be valid, the form must be complete and signed by the owner or an individual employed by the owner. A parent or other person associated with the owner is not authorized to submit or sign the form on behalf of the owner.
(b) A designated agent is authorized to:
(1) submit project information changes;
(2) request a waiver or variance;
(3) make a request for inspection;
(4) communicate with the department on behalf of the owner about the registered project;
(5) receive communications from a registered accessibility specialist; and
(6) submit verification of corrections to a registered accessibility specialist and the department.
(c) A designated agent's failure to comply with the requirements of this chapter on behalf of an owner does not excuse the owner from compliance with the Act, this chapter, and the TAS.
(d) A form must be submitted for each project registered to designate the agent, regardless of whether all the projects are in the same building.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302947
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.50.Submission of Construction Documents.
(a) If the estimated construction cost is $50,000 or more, all plans and specifications for the construction of or alteration to a building or facility subject to §469.101 of the Act must be submitted by a design professional along with a form prescribed by the department to a registered accessibility specialist not later than the twentieth day after the plans and specifications are issued. In computing time under this section, Saturday, Sunday, and legal holidays are not included. All plans may be submitted in electronic format.
(b) When there is not a design professional with overall responsibility, the owner of a building or facility must submit the construction documents to a registered accessibility specialist prior to filing an application for building permit or commencement of construction in an unincorporated portion of a county that does not issue building permits.
(c) An owner or design professional may submit revised construction documents to a registered accessibility specialist to review, including change orders, addenda, or letters.
(d) Construction documents provided to the department become the property of the department and will not be returned.
§68.51.Plan Review Requirements.
(a) Prior to performing a plan review or plan revision review, a registered accessibility specialist must have project construction documents for the building or facility.
(b) An owner may submit revised or supplemental construction documents for review. Upon receipt, a registered accessibility specialist must verify the date of construction completion in writing with the owner. Revised or supplemental construction documents submitted to the registered accessibility specialist:
(1) prior to the recorded estimated completion of construction must be reviewed as part of a plan revision; or
(2) after completion of construction based on the estimated completion of construction are not required to be reviewed but must be uploaded in the TABS project file.
(c) After review of construction documents, the registered accessibility specialist must provide the owner or the owner's designated agent and the design professional making the submission the plan review findings no later than 30 days from the date of the report. All plan review findings must be uploaded in TABS.
(d) A plan review or plan revision review report must be typewritten and include, at a minimum:
(1) a title indicating whether the report is a "Plan Review Report" or "Plan Revision Review Report;"
(2) the name and certification number of the registered accessibility preparing the report;
(3) date of the report;
(4) TABS project number issued by the department;
(5) facility name;
(6) project name and address; and
(7) a detailed list of each deficiency, including a reference to the TAS section number, if applicable.
§68.52.Inspections and Corrective Modifications.
(a) Prior to performing an inspection, a registered accessibility specialist must have access to the project in TABS and a written request for inspection from the owner or the owner's designated agent.
(b) To be valid, the owner, the owner's designated agent, or an individual representing the owner is required to be present during the inspection. The individual onsite during the inspection must provide a physical or electronic signature on the inspection form prescribed by the department.
(c) A registered accessibility specialist must complete an inspection report no later than 30 days from the date of the inspection. An inspection report must be:
(1) provided to the owner within 30 days of the date of the report;
(2) uploaded in TABS;
(3) typewritten and include, at a minimum:
(A) heading titled "Inspection Report;"
(B) the name and certification number of the registered accessibility preparing the report;
(C) date of the report;
(D) date of the inspection;
(E) TABS project number issued by the department;
(F) facility name;
(G) project name and address; and
(H) violations cited in detailed, followed by the TAS section number, including specific information identifying the location of each violation.
(d) If corrective modifications are required to achieve compliance the owner must:
(1) respond to the inspection report by submitting a form prescribed by the department to the registered accessibility specialist not later than the 30th day of the date of the inspection report; and
(2) complete corrective modifications by the 270th day after the date of the inspection report.
(e) The owner's corrective modification response must be uploaded in TABS not later than the 30th calendar day after receipt.
§68.53.Transmittal Letters.
(a) A transmittal letter must be provided to an owner no later than the 30th day after the completion of a plan review, plan revision, or inspection and uploaded in TABS.
(b) A transmittal letter must be typewritten and include, at a minimum:
(1) date of the report;
(2) the name and certification number of the registered accessibility preparing the letter;
(3) owner name and address;
(4) TABS project number issued by the department;
(5) project name, facility name, and address;
(6) results paragraph, as applicable;
(7) owner action paragraph, as applicable; and
(8) disclaimer paragraph, as applicable.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302948
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.70.Registered Accessibility Specialist Certification--Eligibility, Qualifications, and Application Requirements.
(a) A person may not perform or offer to provide plan review or inspection services unless the person is a certified registered accessibility specialist. To be certified, an individual must:
(1) meet one of the following qualifications:
(A) hold a degree in architecture, engineering, interior design, landscape architecture, or equivalent, and at least one year experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent;
(B) have at least eight years of experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent; or
(C) have at least four years of experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent, and certification by a model building code organization as an accessibility inspector or plans examiner;
(2) pass an examination approved by the department;
(3) successfully pass a criminal history background check; and
(4) submit the required fee under §68.80.
(b) An applicant must submit the following required documentation in a manner prescribed by the department:
(1) a complete application on a department approved form; and
(2) verifiable evidence that the applicant meets the requirements in subsection (a)(1).
(c) Each applicant who satisfies all requirements will be provided a wallet card and a wall certificate. The wallet card is the actual certificate of registration.
(d) An applicant must complete all requirements, including passing the examination in subsection (a)(2), no later than one year from the date the application is submitted. After that year the applicant will be required to submit a new application and all required materials in addition to paying a new application fee.
§68.73.Registered Accessibility Specialist Certification--Renewal Requirements.
(a) To renew a certification, a registered accessibility specialist must:
(1) submit a complete renewal application in a manner prescribed by the department;
(2) successfully pass a criminal history background check;
(3) complete four hours of continuing education as required under §68.74; and
(4) submit the required fee under §68.80.
(b) A registered accessibility specialist with an expired certification shall not perform work requiring registration under the Act.
(c) A certification will not be renewed until continuing education requirements have been met.
§68.74.Continuing Education.
(a) To renew a certification, a registered accessibility specialist must complete four hours of continuing education as provided in this section.
(b) To meet the requirements of this section, continuing education hours must include instruction in one or more of the following topics:
(1) Texas Government Code, Chapter 469, Elimination of Architectural Barriers;
(2) 16 Texas Administrative Code, Chapter 68 - Administrative Rules;
(3) 2012 Texas Accessibility Standards;
(4) technical memoranda published by the department;
(5) 2010 Standards for Accessible Design or other accessibility guidelines proposed or adopted by the Access Board or United States Department of Justice;
(6) Americans with Disabilities Act;
(7) International Code Council/American National Standards Institute (ANSI) A117.1 Standard on Accessible and Usable Buildings and Facilities; or
(8) life safety codes related to egress.
(c) A registered accessibility specialist must certify completion of continuing education hours at the time of renewal in a manner prescribed by the department.
(d) Continuing education hours must have been completed within the term of the current certification, in the case of a timely renewal. For a late renewal, the continuing education hours must have been completed within the one-year period immediately prior to the date of renewal.
(e) A registered accessibility specialist will not receive continuing education credit for attending the same course more than once during the one-year period in which the course is offered.
(f) A registered accessibility specialist must retain a copy of the certificate of completion for a course for three years after the date of completion. In conducting an inspection or investigation of a registered accessibility specialist, the department may examine the registered accessibility specialist's records to determine compliance with this section.
(g) This section applies to certifications that expire on or after September 1, 2023.
§68.75.Responsibilities of the Registered Accessibility Specialist.
(a) A registered accessibility specialist may set and collect fees for services rendered but must submit to the department fees received on behalf of the department no later than 30 days after receipt.
(b) A registered accessibility specialist must secure written authorization:
(1) from an owner prior to performing a plan review, inspection, or related activity of a building or facility with an estimated construction cost of less than $50,000 or that is not subject to the Act; and
(2) from the department prior to performing a plan review, inspection, or related activity for a building or facility that will be leased or occupied by an agency of the State of Texas.
(c) A registered accessibility specialist must maintain project files for a period of one year following the closure of the project in TABS.
(d) A registered accessibility specialist is required to upload a change in the estimated date of completion of construction within 30 days of receipt from the owner.
(e) A registered accessibility specialist must provide written notification to the department of changes to their contact information within 30 calendar days of a change occurring.
§68.76.Standards of Conduct.
(a) Competency. A registered accessibility specialist shall ensure compliance, be knowledgeable of, and adhere to the Act, the TAS, and this chapter. A registered accessibility specialist shall exercise reasonable judgment and skill in the performance of plan reviews, inspections, and related activities.
(b) Integrity. A registered accessibility specialist shall not:
(1) be deceitful or make misrepresentations, whether by acts of commission or omission, in the performance of plan review, inspection, and related activities; or
(2) commit acts or practices that constitute threats, coercion, or extortion.
(c) Conflict of Interest.
(1) If a registered accessibility specialist has any business association or financial interest which might reasonably appear to influence the individual's judgment in connection with the performance of a professional service and thereby jeopardize an interest of the registered accessibility specialist's current or prospective client or employer, the registered accessibility specialist shall promptly inform the client or employer in writing of the circumstances of the business association or financial interest.
(2) A registered accessibility specialist shall not solicit or accept, directly or indirectly, any financial or other valuable consideration, material favor, or other benefit of any substantial nature, financial or otherwise, from more than one party in connection with a single project or assignment unless the circumstances are fully disclosed in writing to all parties.
(3) A registered accessibility specialist shall not perform plan reviews, inspections, or related activities, such as preliminary plan reviews or pre-construction site assessments, while also providing consulting or other professional services on the same registered project. Non-design related review services are not consulting or professional services for the purposes of this section.
(d) Specific Rules of Conduct. A registered accessibility specialist shall not:
(1) participate, whether individually or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, the rules, or the TAS;
(2) knowingly furnish inaccurate, deceitful, or misleading information to the department, a building owner, or other person involved in a plan review, inspection, or related activity;
(3) state or imply that the department will approve a variance;
(4) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing a plan review, inspection, or related activity;
(5) perform a plan review, inspection, or related activity in a negligent or incompetent manner;
(6) perform a plan review, inspection, or related activity on a building or facility in which the registered accessibility specialist is an owner, either in whole or in part, or an employee of a full or partial owner;
(7) perform a plan review, inspection, or a related activity on a building or facility that is or will be leased or occupied by an agency of the State of Texas, when the registered accessibility specialist is an employee of the state agency that will occupy the facility;
(8) perform a plan review, inspection, or related activity on a building or facility wherein the registered accessibility specialist participated in creating the overall design of the current project; or
(9) represent himself or herself as an employee of the department or as a person hired by the department.
§68.77.Shared Services.
(a) A registered accessibility specialist may engage the services of another registered accessibility specialist to perform services on their behalf.
(b) Each registered accessibility specialist engaged in shared services must:
(1) be actively certified with the department;
(2) complete the assigned plan review or inspection within 30 days of accepting the project in TABS; and
(3) not alter the work product of the other registered accessibility specialist, which includes making amendments to a plan review, inspection report, or corrective modification letter.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302949
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.
§68.93.Complaints, Investigations, and Audits.
(a) Complaints. A complaint may be filed against an owner if there is reason to believe that a building or facility is not in compliance with the Act, the rules, or the TAS. A complaint may be filed against a registered accessibility specialist if there is reason to believe that the registered accessibility specialist has violated the Act, the rules, procedures, or the TAS.
(b) Investigations and Audits. Owners of buildings and facilities subject to compliance with the Act, TAS, and this chapter, are subject to investigation by the department. Registered accessibility specialists are subject to investigation and audit by the department.
(c) Inspection of Records. Records pertaining to a project for which plan review, inspection, or related activities have been or will be performed, must be made available by the registered accessibility specialist for inspection upon request. Records must be uploaded in TABS within 14 calendar days of receiving a written request from the department, or within a time prescribed by the department.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302950
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-4879
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 73, §73.100, regarding the Electricians program, without changes to the proposed text as published in the April 28, 2023, issue of the Texas Register (48 TexReg 2172). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 73, implement Texas Occupations Code, Chapter 1305, Electricians.
The adopted rule is necessary to adopt the 2023 National Electrical Code (NEC) as required by statute. Texas Occupations Code §1305.101(a) requires the Commission to adopt, every three years, the revised NEC as the electrical code for the state. The current rule references the 2020 edition of the NEC.
SECTION-BY-SECTION SUMMARY
The adopted rule amends §73.100, Technical Requirements, by adopting the 2023 edition of the NEC effective September 1, 2023, and repealing subsection (b) of the current rule.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 28, 2023, issue of the Texas Register (48 TexReg 2172). The public comment period closed on May 30, 2023. The Department received comments from four interested parties on the proposed rules. The public comments are summarized below.
Comment: One commenter stated support for the proposed repeal of §73.100(b).
Department Response: The department appreciates the comment. The Department did not make any changes to the proposed rules based on this comment.
Comment: One commenter had a question about examination procedures.
Department Response: The comment was forwarded to the Customer Service division for response. The Department did not make any changes to the proposed rules based on this comment.
Comment: One commenter had a question about the status of an application.
Department Response: The comment was forwarded to the Customer Service division for response. The Department did not make any changes to the proposed rules based on this comment.
Comment: One commenter submitted a certificate showing completion of a continuing education course.
Department Response: The comment was forwarded to the Customer Service division for response. The Department did not make any changes to the proposed rules based on this comment.
ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION
The Electrical Safety and Licensing Advisory Board met on June 26, 2023, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on August 1, 2023, the Commission adopted the proposed rules as recommended by the Advisory Board.
STATUTORY AUTHORITY
The adopted rule is adopted under Texas Occupations Code, Chapters 51 and 1305, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and 1305. No other statutes, articles, or codes are affected by the adopted rule.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302941
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 28, 2023
For further information, please call: (512) 475-4879
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 75, §75.100, regarding the Air Conditioning and Refrigeration Contractors (ACR) program, without changes to the proposed text as published in the April 28, 2023, issue of the Texas Register (48 TexReg 2173). These rules will not be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 75, implement Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors.
The adopted rule is necessary to remove outdated language related to the 2020 National Electrical Code (NEC) that was included in the ACR program rules. Texas Occupations Code §1305.101(a) requires the Commission to adopt, every three years, the revised NEC as the electrical code for the state. The Department proposed rules under the Electricians program to adopt the 2023 NEC (see separate rulemaking). The language related to the 2020 NEC is no longer necessary to be included in the ACR program rules.
SECTION-BY-SECTION SUMMARY
The adopted rule amends §75.100, Technical Requirements, by repealing subsection (a)(5).
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 28, 2023, issue of the Texas Register (48 TexReg 2173). The public comment period closed on May 30, 2023. The Department received comments from two interested parties on the proposed rules. The public comments are summarized below.
Comment: One commenter expressed confusion about the rule and sought clarification regarding whether the proposed rule would require licensees to take additional continuing education courses.
Department Response: The Department appreciates the comment. The proposed rule will not require licensees to take any additional continuing education courses. The Department did not make any changes to the proposed rules based on this comment.
Comment: One commenter stated that all electrical work should be completed by a licensed and qualified professional electrician.
Department Response: The Department appreciates the comment. The Department did not make any changes to the proposed rules based on this comment.
COMMISSION ACTION
At its meeting on August 1, 2023, the Commission adopted the proposed rules as published in the Texas Register.
STATUTORY AUTHORITY
The adopted rule is adopted under Texas Occupations Code, Chapters 51 and 1302, which authorize the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rule are those set forth in Texas Occupations Code, Chapters 51 and 1302. No other statutes, articles, or codes are affected by the adopted rule.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 11, 2023.
TRD-202302943
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: August 31, 2023
Proposal publication date: April 28, 2023
For further information, please call: (512) 475-4879
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 97, Subchapter A, §97.3; Subchapter B, §97.23; Subchapter D, §97.56; Subchapter E, §97.70 and §97.74; and the repeal of Subchapter G, §§97.90 - 97.95, regarding the Motor Fuel Metering and Quality program, without changes to the proposed text as published in the March 24, 2023, issue of the Texas Register (48 TexReg 1612). These rules will not be republished.
The Commission also adopts amendments to existing rules at 16 TAC, Chapter 97, Subchapter A, §97.2; Subchapter B, §97.25, and §97.29; Subchapter D, §97.59; and adopts new rules at Subchapter B, §97.30 and §97.31, regarding the Motor Fuel Metering and Quality program, with changes to the proposed text as published in the March 24, 2023, issue of the Texas Register (48 TexReg 1612). These rules will be republished.
Included elsewhere in this issue of the Texas Register, the Commission also withdraws proposed amendments to existing rules at 16 TAC, Chapter 97, Subchapter B, §§97.20 - 97.22, and §97.27; and withdraws proposed new rules at Subchapter B, §97.32 and §97.33 as published in the March 24, 2023, issue of the Texas Register (48 TexReg 1612).
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 97, implement Texas Occupations, Chapter 2310, Motor Fuel Metering and Quality.
The adopted rules update definitions applicable to the program, clarify the standards applicable to fuel quality, and add merchant and consumer protections from card fraud. The adopted rules are necessary to implement legislative changes from House Bill (HB) 2106, 87th Legislature, Regular Session (2021), related to payment card skimmers on motor fuel devices.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §97.2, Definitions. The adopted rules add a definition for "tamper- evident security label." The adopted rules include Advisory Board recommended changes to the published rule text at paragraphs (11) and (14) to remove proposed amendments to the definition of "merchant," and removal of the proposed term "operator," respectively. The rules have been renumbered accordingly.
The adopted rules amend §97.3, Adoption by Reference. The adopted rules update and clarify the standards applicable to motor fuel.
The adopted rules amend §97.23, Device Performance Review Requirements. The adopted rules clarify that a device performance review may only be performed by a licensed service company and removes references to the September 1, 2020, the effective date of the section included when the rules were adopted after the program was transferred to the department.
The adopted rules amend §97.25, Consumer Information Sticker. The adopted rules remove the reference to the December 1, 2020, effective date for implementation of the section that was originally included when the rules were adopted following the program transfer. The adopted rules include Department recommended changes to the published rule text at subsection (b) to replace the proposed term "merchant" with the original phrase "owner or operator."
The adopted rules amend §97.29, Discovery of Payment Card Skimmers. The adopted rules retitle the section to "Detection and Reporting of Payment Card Skimmers," and prescribe the timeline and process a merchant must follow for reporting the discovery of a skimmer to law enforcement and the department after the discovery. The adopted rules include Department recommended changes to the published rule text at subsections (a), (b), and (c) to replace the proposed term "merchant" with the original phrase "owner or operator." The adopted rules also include Advisory Board recommended changes to the published rule text at subsection (a)(3) to clarify the process for submitting law enforcement report case numbers to the department; and (a)(4) to specify how to place a device out of order pending removal of a skimmer.
The adopted rules add new §97.30, Unauthorized Removal of Skimmers Prohibited. The adopted rules prohibit the removal of a skimmer unless instructed to do so by law enforcement or the department and include requirements for how the skimmer must be removed. The adopted rules include Department recommended changes to the published rule text at subsections (a), (b), and
(d) to replace the proposed term "merchant" with the phrase "owner or operator." The adopted rules include further changes to the published rule text at subsection (b) to simplify the proposed language and provide that a skimmer may be removed 48 hours after notifying the Department.
The adopted rules add new §97.31, Device Security for Motor Fuel Devices. The adopted rules require an owner or operator to take measures to protect each device using at least two preventative measures. The adopted rules include Department recommended changes to the published rule text to replace the proposed term "merchant" with the phrase "owner or operator." The adopted rules also include Advisory Board recommended changes to the published rule text at paragraph (2)(C) to remove the requirement to document and maintain inspection logs, and at paragraph (6)(A) to require an owner or operator utilizing video camera systems to record video of the forecourt at all times.
The adopted rules amend §97.56, Service Technician License Requirements-Renewal. The adopted rules standardize the terminology for license holders with other department rules.
The adopted rules amend §97.59, Inspection for Payment Card Skimmers. The adopted rules prohibit the removal of a skimmer unless instructed to do so by law enforcement or the department and include requirements for how the skimmer must be removed. The adopted rules include Department recommended changes to the published rule text which replace the terms "merchant," and "dealer" from subsection (b)(1), and the term "merchant" from subsection (d) with the phrase "owner or operator." This change was made throughout the chapter for consistency. The adopted rules also include Department recommended changes to the published rule text at subsection (e) which replaces the term "individual" with "service technician" to clarify who is subject to the section.
The adopted rules also include Advisory Board recommended changes to the published rule text at subsection (d) to simplify proposed language and provide that a skimmer may be removed 48 hours after notifying the Department.
The adopted rules amend §97.70, Device Fees, to correct a clerical error.
The adopted rules amend §97.74, Fee Policy, to standardize formatting for consistency with other department rules.
The adopted rules repeal §97.90, Definitions, by removing common definitions not used in the chapter and relocates applicable definitions into §97.2, Definitions.
The adopted rules repeal §97.91, Policies, Procedures, and Training, which have been incorporated into §97.33, Fraud Awareness Training, as discussed above.
The adopted rules repeal §97.92, Minimum Practices for Prevention of Skimmers, which have been incorporated into §97.29, Detection and Reporting of Payment Card Skimmers, and §97.31, Device Security for Motor Fuel Devices, §97.32, Inspection and Maintenance Logs, and §97.33, Fraud Awareness Training, as discussed above.
The adopted rules repeal §97.93, Additional Practices for the Prevention of Skimmers at Medium- risk Places of Business, which removes requirements that add practices for medium-risk places of business as well as punitive and onerous tasks, creating a financial burden, for example by requiring the installation of electronic monitoring devices by merchants who are victims of skimmer fraud, instead shifting efforts proactively to prevent unauthorized device access and installation of skimmers.
The adopted rules repeal §97.94, Additional Practices for the Prevention of Skimmers at High-risk Places of Business, which removes requirements that add practices for high-risk places of business as well as punitive and onerous tasks, creating a financial burden by requiring the installation of video cameras and lights around each device for merchants who are victims of skimmer fraud, instead shifting efforts proactively to prevent unauthorized device access and installation of skimmers.
The adopted rules repeal §97.95, which has been incorporated into §97.29, Detection and Reporting of Payment Card Skimmers, as discussed above.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the March 24, 2023, issue of the Texas Register (48 TexReg 1612). The public comment period closed on April 24, 2023. The Department received comments from three interested parties on the proposed rules.
Comment: The Department received two comments submitted by the same individual regarding options for compliance with the fraud awareness training requirements in the proposed rules. Specifically, one of the submitted comments inquired whether the Department would authorize an organization to conduct its own training and maintain its own documentation.
Department Response: The Department thanks the individual for their questions regarding the proposed rules. The Department notes that it has withdrawn the proposed rule.
Comment: The Department received a question from an individual that was non-responsive to the substance of the proposal.
Department Response: The Department notes that the individual's question is issue-specific and will not be addressed in this preamble. The Department did not make any changes to the proposed rules in response to this comment.
Comment: The Department received comments from the Texas Food and Fuel Association (TFFA). TFFA submitted comments regarding §§97.2, 97.29, 97.30, and §§97.32 - 97.33.
TFFA submitted comments regarding proposed §97.2, stating that the removal of the term "operator" could be detrimental to regulation due to the complexity of relationships between owners and operators. TFFA requested that the rule be withdrawn.
TFFA submitted comments regarding the use of the amended definition of "merchant" throughout proposed §97.29 in relation to the responsibility for compliance with detection and reporting of skimmers. TFFA noted that a skimmer may only be removed by a "licensed technician" hired by the "merchant." Finally, TFFA commented that the 72-hour timeline that a pump must remain out of service could be a deterrent for compliance with the rule.
TFFA submitted comments regarding §97.30 which align with their concerns presented regarding §97.29. TFFA states that often law enforcement agencies are unable or unwilling to respond to reports of skimmers, leaving them out of business for up to 72 hours prior to the skimmer being removed.
TFFA commented that §97.32 regarding Inspection and Maintenance Logs is unnecessary as many owners currently have technology in place to detect and notify in the event that a breach occurs.
TFFA submitted its comment in opposition of §97.33, relating to Fraud Awareness Training. While they are not opposed to the training overall, TFFA's is opposed to the rule based on the lack of detail regarding what will be required as part of the training program.
Department Response: The Department thanks the TFFA for their comments. The Department will address each comment in order, separately.
The Department agrees with the comments and appreciates the insight on the fuel industry's use of the terms "owner" and "operator" as they apply to the proposed rules. The Department agrees with the suggestion to withdraw the proposed amendment to the definition of "merchant" in §97.2(11), to allow further discussion with industry stakeholders and the Advisory Board. The Department has withdrawn proposed changes to §97.2(11) and §97.2(14), which would have amended the definition of "merchant" and removed the term "operator," respectively.
The Department has withdrawn proposed amendments to §97.2 regarding the term "merchant." No additional changes have been made to §97.29, Detection and Reporting of Payment Card Skimmers, in response to TFFA's comment regarding responsibility for merchants. To ensure consistency throughout the chapter, the Department has removed the requirement limiting removal of a skimmer to a "licensed service technician." The Department appreciates the insight regarding the timeline prior to removal of a skimmer after reporting to the Department and law enforcement. To ensure compliance with the rule and the spirit of the law to preserve the chain of custody to the extent possible, the timeline for an owner or operator to remove a skimmer has been reduced to 48-hours to allow sufficient time for the Department or law enforcement to respond while ensuring they can resume business operations in a reasonable amount of time.
The Department appreciates the TFFA's concern regarding the timeline prior to removal of a skimmer presented in §97.30. To ensure compliance with the rule and the spirit of the law to preserve the chain of custody to the extent possible, the timeline for an owner or operator to remove a skimmer has been reduced to 48-hours to allow sufficient time for the Department or law enforcement to respond while ensuring they can resume business operations in a reasonable amount of time.
The Department agrees with TFFA's suggestion regarding §97.32, Inspection and Maintenance Logs, and will work with the Advisory Board and stakeholders to continue the dialogue regarding this issue and has withdrawn the rule.
The Department agrees with TFFA's suggestion regarding §97.33, relating to Fraud Awareness Training, and will work with the Advisory Board and stakeholders to continue the dialogue regarding this issue and has withdrawn the rule.
ADVISORY BOARD RECOMMENDATIONS
The Motor Fuel Metering and Quality Advisory Board met on May 16, 2023, to discuss the proposed rules and the public comments received. The Motor Fuel Metering and Quality Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §§97.2, 97.25, 97.29, 97.30, 97.31, and 97.59, made in response to public comment and Department recommendations as explained in the Section-by-Section Summary.
SUBCHAPTER A. GENERAL PROVISIONS
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 2310, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2310. No other statutes, articles, or codes are affected by the adopted rules.
§97.2.Definitions.
The following words and terms, when used in this chapter must have the following meanings, unless the context clearly indicates otherwise.
(1) ASTM--ASTM International; the national voluntary consensus standards organization formed for the development of standards on characteristics and performance of materials, products, systems and services and the promotion of related knowledge.
(2) Code--The Texas Occupations Code, Chapter 2310, "Motor Fuel Metering and Quality."
(3) Commission--Texas Commission of Licensing and Regulation.
(4) Controlling person--an individual who:
(A) is a sole proprietor;
(B) is a general partner of a partnership;
(C) is a controlling person of a business entity that is a general partner of a partnership;
(D) possesses direct or indirect control of at least 25 percent of the voting securities of a corporation;
(E) is the president, the secretary, or a director of a corporation; or
(F) possesses the authority to set policy or direct the management of a business entity.
(5) Department--Texas Department of Licensing and Regulation.
(6) Device--A commercial weighing or measuring device used for motor fuel sales, also defined as a motor fuel metering device by §2310.001(7) of the Code.
(7) Device performance review (DPR)--The comprehensive inspection and testing of a motor fuel metering device to ensure it is calibrated and operating according to NIST and Manufacturer specifications.
(8) Gasoline--A liquid or combination of liquids blended together, offered for sale, sold, used, or capable of use as fuel for a gasoline-powered engine. The term includes gasohol, aviation gasoline, and blending agents, but does not include compressed natural gas, liquefied natural gas, racing gasoline, diesel fuel, aviation jet fuel, or liquefied gas, as defined in §162.001(29) of the Texas Tax Code.
(9) GPM--Gallons per minute.
(10) ISO--International Organization for Standardization; an independent, non-governmental organization that develops voluntary international standards to facilitate world trade by providing common standards among nations.
(11) Merchant--A person whose business includes the sale of motor fuel through motor fuel metering devices, as defined by §607.001(4) of the Texas Business and Commerce Code.
(12) Motor fuel--Gasoline, diesel fuel, gasoline blended fuel, compressed natural gas, liquefied natural gas, and other products that are offered for sale, sold, used, or capable of use as fuel for a gasoline-powered engine or a diesel-powered engine, as defined in §162.001(42) of the Texas Tax Code.
(13) NIST--The National Institute of Standards and Technology; a non-regulatory federal agency under the United States Department of Commerce, which certifies and provides standard reference materials used to perform instrument calibrations, verifies the accuracy of specific measurements and supports the development of new measurement methods.
(14) Operator--A person in possession or control of a weighing or measuring device, as defined in 2310.001(8) of the Code.
(15) Skimmer--A wire or electronic device that is capable of unlawfully intercepting electronic communications or data to perpetrate fraud, as defined by §607.001(8) of the Texas Business and Commerce Code.
(16) Tamper-evident security label""A label or tape that, once applied to a surface, cannot be removed without self-destructing, or otherwise leaving a clear indication that the label or tape has been removed.
(17) Test standard--A certified weight or measure used to test a device for accuracy.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302926
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: March 24, 2023
For further information, please call: (512) 463-7750
16 TAC §§97.23, 97.25, 97.29 - 97.31
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 2310, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2310. No other statutes, articles, or codes are affected by the adopted rules.
§97.25.Consumer Information Sticker.
(a) A consumer information sticker with the department's contact information and current motor fuel tax rates, must be placed on each face of all motor fuel dispensers.
(b) If any part of the information on the sticker is no longer fully legible and in plain sight of the consumer, it must be replaced within 30 days of the date the owner or operator discovers the condition.
(c) A consumer information sticker must not be placed in a manner that affects the accuracy, readability, or lawful operation of a device.
(d) This section does not apply to a device on a transport vehicle.
§97.29.Detection and Reporting of Payment Card Skimmers.
(a) An owner or operator who discovers or is notified of the presence of a skimmer by a service technician or employee must:
(1) immediately make a report to local law enforcement that a skimmer has been discovered and is still installed in the device;
(2) notify the department within 24 hours of the discovery on a form prescribed by the department;
(3) request the law enforcement report or case number and submit it in a manner prescribed by the department; and
(4) place each affected device out of service and block access to the dispenser to prevent tampering with evidence until the skimmer has been removed as authorized under this chapter.
(b) The owner or operator must cooperate with law enforcement, the department, and the Center in the investigation of a suspected or discovered skimmer.
(c) The owner or operator must provide a copy of available photographic and/or video surveillance of the retail facility to law enforcement.
§97.30.Unauthorized Removal of Skimmers Prohibited.
(a) In order to preserve evidence and the chain of custody, an owner or operator, retail facility employee, or unlicensed service technician is prohibited from removing a skimmer unless instructed to do so by law enforcement or the department.
(b) If neither law enforcement nor the department has arrived to remove a skimmer within 48 hours after the owner or operator has notified the department as required by §97.29(a)(2), the skimmer may be removed in accordance with subsection (c).
(c) When removing a skimmer under this section, an individual must:
(1) wear sterile gloves while removing the skimmer(s);
(2) place each skimmer in a clear plastic bag, seal the bag, and label the sealed bag with the date and time the skimmer was removed and bagged, along with the initials of the person removing the skimmer; and
(3) transfer the skimmer(s) to local law enforcement and request the law enforcement case or report number.
(d) The owner or operator must provide the law enforcement case or report number to the department in a manner prescribed by the department following transfer of the skimmer to law enforcement.
§97.31.Device Security for Motor Fuel Devices.
By January 1, 2024, an owner or operator is required to take two or more of these measures to protect each device:
(1) replace each factory installed universal locking mechanism with a locking device that utilizes a unique device-specific or site-specific key code or combination;
(2) utilize tamper-evident security labels. Tamper-evident security labels must:
(A) be placed over each panel opening that provides access to an interior portion of the device from which the payment terminal or the device can be accessed;
(B) have a unique serial number or unique custom label or easily identifiable custom label or graphic; and
(C) be replaced if damaged, perforated, or peeled;
(3) install a physical barrier, lock, or other physical securing device that restricts access to the electronic financial transaction compartment of the device;
(4) install and maintain monitoring devices or sensors on all doors or panels providing access to an interior portion of the device and associated payment terminal components which emit an audible alarm and/or disable the device when unauthorized access is attempted;
(5) retrofit, upgrade, or replace each device with an enabled EMV-compliant payment terminal that meets the security, interoperability, and functionality specifications issued by EMVCo, LLC; or
(6) install and maintain a high-resolution video camera system and forecourt lighting. To meet the requirements of this section:
(A) the video camera system must record the forecourt area at all times, and the system must retain all videos for 30 days or more. Cameras must be positioned to record:
(i) each device;
(ii) the license plates of vehicles approaching or departing the immediate area around each device; and
(iii) any person interacting with each device at a pixel density of at least 50 pixels per foot; and
(B) lighting must be bright enough to ensure a minimum illumination of 10 lumens per square foot at grade.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302927
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: March 24, 2023
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 2310, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2310. No other statutes, articles, or codes are affected by the adopted rules.
§97.59.Inspection for Payment Card Skimmers.
(a) A service technician must inspect for the presence of a skimmer:
(1) during a device performance review; and
(2) each time a motor fuel dispenser is opened to perform device maintenance activities.
(b) A service technician or the service company that employs the technician must report the finding of a skimmer:
(1) immediately to the owner or operator; and
(2) within 24 hours to the department on a form prescribed by the department.
(c) In order to preserve evidence and the chain of custody, a service technician must not remove a skimmer unless instructed by law enforcement or the department.
(d) If neither law enforcement nor the department has arrived to remove a skimmer within 48 hours after the owner or operator has notified the department as required by §97.29, the skimmer may be removed in accordance with subsection (e).
(e) When removing a skimmer under this section, an individual must:
(1) wear sterile gloves while removing the skimmer(s);
(2) place each skimmer in a clear plastic bag, seal the bag, and label the sealed bag with the date and time the skimmer was removed and bagged, along with the initials of the person removing the skimmer; and
(3) transfer the skimmer(s) to local law enforcement and request the law enforcement case or report number.
(f) The service technician must provide the law enforcement case or report number to the department in a manner prescribed by the department following transfer of the skimmer to law enforcement.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302928
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: March 24, 2023
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 2310, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 2310. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302925
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: March 24, 2023
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The adopted repeals are adopted under Texas Occupations Code, Chapters 51 and 2310, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt repeals as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 2310. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302921
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: March 24, 2023
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 115, §§115.1, 115.4, 115.5, 115.13 - 115.15, 115.20, 115.21, 115.23, 115.25, 115.70, 115.80, 115.100, and 115.120; new rules at §§115.2, 115.12, 115.16, and 115.121; and the repeal of existing rules at §§115.2, 115.16, and 115.121; regarding the Midwives program, without changes to the proposed text as published in the April 14, 2023, issue of the Texas Register (48 TexReg 1936). These rules will not be republished.
The Commission also adopts a new rule at §115.22, with changes to the proposed text as published in the April 14, 2023, issue of the Texas Register (48 TexReg 1936). This rule will be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC Chapter 115 implement Texas Occupations Code, Chapter 203, Midwives.
The adopted rules implement changes recommended by Department staff as a result of the four-year rule review conducted under Texas Government Code §2001.039. The adopted rules update requirements relating to approval of basic midwifery education courses, preceptor supervision of student clinical experience, informed client choice and disclosure statements, and retired midwife licenses. The adopted rules also make updates to reflect current Department procedures and remove obsolete or unnecessary language.
The Notice of Intent to Review for Chapter 115 was published in the October 9, 2020, issue of the Texas Register (45 TexReg 7281). The public comment period closed on November 9, 2020. At its meeting on March 3, 2021, the Texas Commission of Licensing and Regulation (Commission) readopted Chapter 115 in its entirety without changes. The readoption notice was published in the March 26, 2021, issue of the Texas Register (46 TexReg 2050). In response to the Notice of Intent to Review for Chapter 115 that was published, the Department received comments from one interested party requesting rule changes that would not be possible without statutory changes. Therefore, the adopted rules do not include any changes in response to public comments, and all the changes are based on recommendations by Department staff.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §115.1, Definitions, by changing the term "approved midwifery education courses" to "basic midwifery education course" and updating its definition to provide clarity and consistency with Occupations Code §203.151; removing the definition for "Code" because the term is not used elsewhere in the rule chapter; adding a definition for "compensation" to provide clarity; adding a definition for "CPR certification" to streamline multiple references throughout the chapter; adding a definition for "direct supervision" to provide clarity; adding a definition for the acronym "MANA" to streamline multiple references to the Midwives Alliance of North America; adding a definition for the acronym "MEAC" to streamline multiple references to the Midwifery Education Accreditation Council; adding a definition for the acronym "NARM" to streamline multiple references to the North American Registry of Midwives; adding a definition for "preceptor" to provide clarity; removing the definition of "Program" because the term is not used elsewhere in the rule chapter; updating the definition of "retired midwife" to provide clarity and remove the age requirement; correcting a rule reference in the definition of "standing delegation orders"; adding a definition for "student" to provide clarity; and renumbering the remaining definitions accordingly.
The adopted rules repeal current §115.2 and replace it with new §115.2, License Required, to prohibit the unlicensed practice of midwifery.
The adopted rules amend §115.4, Advisory Board Membership, by amending paragraph (1) to provide consistency with Occupations Code §203.052.
The adopted rules amend §115.5, "Terms; Vacancies", by amending subsections (a) and (b) to provide consistency with Occupations Code §203.055.
The adopted rules add new §115.12, General Application Requirements, to streamline requirements for all applications submitted to the Department; add new subsection (a) consisting of language relocated from current §115.13(a) and (a)(1); and add new subsection (b) to require that original or certified copies of documents must be provided upon request by the Department.
The adopted rules amend §115.13, Initial Application for Licensure, by relocating language from subsections (a) and (a)(1) to new §115.12(a); removing subsections (a)(1)(A) through (a)(1)(E), which consist of application details that can instead be addressed in the application forms approved by the Department; updating subsection (a)(2) to provide clarity and correct grammar; relocating and reorganizing the language in current subsection (a)(2) to become new subsection (a)(3); relabeling current subsection (a)(3) to become new subsection (a)(4) and removing the language that repeats the new definition for "CPR certification" in §115.1; relabeling current subsection (a)(4) to become new subsection (a)(5) and adding language to allow the Department to approve a certification that is equivalent to the certification in neonatal resuscitation from the American Academy of Pediatrics; relabeling current subsection (a)(5) to become new subsection (a)(6) and reorganizing its language for clarity; relabeling current subsection (a)(6) to become new subsection (a)(7) and removing unnecessary language; relabeling current subsection (a)(7) to become new subsection (a)(8) and rephrasing its language for clarity and consistency; rephrasing subsection (b) for clarity and consistency; and creating new subsection (f) consisting of language relocated from current §115.2(b). The Advisory Board made a change to subsection (a)(3)(B) by adding "and passing" to clarify that the course and exam must be passed.
The adopted rules amend §115.14, License Renewal, by adding to subsection (a) the word "midwife" to clarify the section's applicability to renewal of a midwife license; removing from subsection (a)(3) language that repeats the new definition for "CPR certification" in §115.1; and adding new subsection (e) to provide that each applicant for renewal of a midwife license must successfully pass a criminal history background check.
The adopted rules amend §115.15, Late Renewal, by rephrasing for clarity and adding references to other Department rules applicable to late renewals.
The adopted rules repeal current §115.16 and replace it with new §115.16, Retired Voluntary Charity Care Status License, consisting of subsection (a) to explain the applicability of the section; subsection (b) to provide the eligibility requirements for a retired voluntary charity care status license; subsection (c) to provide the requirements for an initial application for a voluntary charity care status license; subsection (d) to provide the limitations on the practice of a person holding a retired voluntary charity care status license; subsection (e) to detail the actions for which a person holding a retired voluntary charity care status license will be subject to disciplinary action; subsection (f) to provide for the two-year license term of a retired voluntary charity care status license; subsection (g) to provide the renewal application requirements, the procedures for late renewal, and the prohibition on unlicensed activity for a voluntary charity care status license; and subsection (h) to provide the requirements for a person who holds a retired voluntary charity care status license and wants to return to active status.
The adopted rules amend §115.20, Basic Midwifery Education, by amending the section title for clarity; rephrasing and restructuring the rule language to remove the need for subsection labels; relocating from current subsection (a) to new paragraph (1) the requirement for a course to have a course administrator and site in Texas; relabeling current subsection (b)(2) to become new paragraph (2) and rephrasing its language for clarity; relabeling current subsection (b)(3) to become new paragraph (3) and replacing the names of entities with their corresponding acronyms defined in §115.1; relabeling current subsection (b)(4) to become new paragraph (4) and rephrasing its language for clarity; relabeling current subsection (b)(5) to become new paragraph (5) and rephrasing its language for clarity; relabeling current subsection (b)(6) to become new paragraph (6) and amending its language to provide consistency with the clinical experience requirements for certification by the North American Registry of Midwives (NARM); relabeling current subsection (b)(7) to become new paragraph (7) and removing unnecessary language that repeats the new definition for "preceptor" in §115.1; relabeling current subsection (c) to become new paragraph (8), rephrasing its language for clarity, and removing the language that repeats the new definition for "CPR certification" in §115.1.
The adopted rules amend §115.21, Education Course Approval, by amending the section title for clarity and consistency; rephrasing subsection (a)(1) for clarity and consistency; modifying subsection (a)(1)(D) to require that the financial statement or balance sheet must demonstrate the ability to provide refunds to any students who enroll and removing the requirement to disclose any bankruptcy within the last five years; in subsection (a)(1)(E), adding the requirement for written policies to include entrance requirements, a list of all fees, and the notice required by Occupations Code §53.152 and removing requirements for language and accessibility covered by other state and federal laws; in subsection (a)(2), changing the time period for retention of student files from five years to "three years after the student is no longer enrolled in the course" to provide a more definite time period, clarifying that student files must include CPR certification and progression of course work; amending subsection (a)(3) to clarify the process for initial course approval; rephrasing subsections (a)(4) through (a)(6) for clarity; amending subsection (b) to clarify the approval of courses accredited by MEAC; amending subsection (c) to clarify the duration of course approval and the process for obtaining a new approval period; amending subsection (d) to require a substantive change in a course to be approved before the change is implemented; and adding new subsection (e) to allow courses to accept transfer hours from other courses and clinical hours earned under a NARM-certified preceptor.
The adopted rules add new §115.22, Preceptor Supervisory Responsibilities, consisting of new subsection (a) to provide the requirements relating to clinical experience activities performed by a student, including direct supervision by a preceptor and informed consent by the client; new subsection (b) to clarify that the student is not practicing midwifery; and new subsection (c) to provide that a licensed midwife acting as a preceptor is responsible for the actions of the student. In response to a recommendation by its Education and Examination workgroup, the Midwives Advisory Board recommended adding language to subsection (a) to clarify that students must always be directly supervised regardless of whether the activities performed are being counted toward the student's education.
The adopted rules amend §115.23, Jurisprudence Examination, by adding new subsection (d) to address administration of the examination, examination fees, reexamination, and notice of examination results, as required by Occupations Code §203.2555(b).
The adopted rules amend §115.25, Continuing Education, by rephrasing and reorganizing for clarity and removing accessibility requirements covered by other state and federal laws.
The adopted rules amend §115.70, Standards of Conduct, by removing the language in current paragraph (1)(L), which authorizes administrative action due to "a lack of personal or professional character in the practice of midwifery" because the standard is vague and subjective; renumbering the remaining provisions in paragraph (1) accordingly; and updating paragraph (3) to clarify that course approval may be suspended or revoked, add loss of MEAC accreditation as a reason for course suspension or revocation, and make cleanup changes for clarity.
The adopted rules amend §115.80, Fees, by updating the names of fees for clarity and consistency and reducing the retired voluntary charity care status license fees in paragraphs (4) and (5) from $275 to $0.
The adopted rules amend §115.100, Standards for the Practice of Midwifery in Texas, by making cleanup changes to subsections (a) and (c) for clarity and consistency.
The adopted rules amend §115.120, Newborn Screening, to clarify the requirements relating to a midwife who chooses to collect blood specimens for newborn screening tests, including the required training and submission of the appropriate form to the Department, and removing unnecessary language.
The adopted rules repeal current §115.121 and replace it with new §115.121, Informed Choice and Disclosure Statement, which adds new subsection (a) to require a midwife to use the form prescribed by the Department; adds new subsection (b) to require a midwife to provide the content of the form to a prospective client in both oral and written form before providing any midwifery service; and adds new subsection (c) to require a student performing clinical experience activities to first obtain the informed consent required by new §115.22.
PUBLIC COMMENTS
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 14, 2023, issue of the Texas Register (48 TexReg 1936). The public comment period closed on May 15, 2023. The Department did not receive any comments from interested parties on the proposed rules.
ADVISORY BOARD RECOMMENDATIONS
The Midwives Advisory Board met on June 12, 2023, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §115.22, made in response to a recommendation by the Education and Examination workgroup of the Advisory Board, as explained in the Section-by-Section Summary.
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 203, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 112, which requires the adoption of rules providing for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care.
The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 203, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the adopted rules.
§115.22.Preceptor Supervisory Responsibilities.
(a) All clinical experience activities performed by a student must be under the direct supervision of a preceptor in accordance with this section.
(1) The student must always be directly supervised regardless of whether the activities are being counted toward the student's education.
(2) The student must perform only the activities authorized by the preceptor.
(3) The student must not advertise, or represent to the public in any way, that the student is a midwife.
(4) The student must not receive compensation from a client for performing supervised activities.
(5) Before any service involving a student is provided to a client:
(A) the client must be informed in writing of:
(i) the requirements of this section;
(ii) the identity and license status of the preceptor and the student;
(iii) the services that will be provided under direct supervision to the client; and
(B) the client must consent in writing to the services being provided under direct supervision.
(b) A student acting under direct supervision in accordance with this section is not practicing midwifery in violation of the requirement to hold a license.
(c) A licensed midwife providing direct supervision of a student is responsible for all actions and liabilities of the student.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302919
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: April 14, 2023
For further information, please call: (512) 463-7750
STATUTORY AUTHORITY
The adopted repeals are adopted under Texas Occupations Code, Chapters 51 and 203, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. The adopted repeals are also adopted under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department. The adopted repeals are also adopted under Texas Occupations Code, Chapter 112, which requires the adoption of rules providing for reduced fees and continuing education requirements for a retired health care practitioner whose only practice is voluntary charity care.
The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 203, and Texas Government Code, Chapter 411, Subchapter F. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 10, 2023.
TRD-202302918
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: September 1, 2023
Proposal publication date: April 14, 2023
For further information, please call: (512) 463-7750