TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 12. COAL MINING REGULATIONS

SUBCHAPTER G. SURFACE COAL MINING AND RECLAMATION OPERATIONS, PERMITS, AND COAL EXPLORATION PROCEDURES SYSTEMS

DIVISION 2. GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS

16 TAC §12.108

The Railroad Commission of Texas (Commission) proposes to amend §12.108, relating to Permit Fees, to implement provisions of Senate Bill 1, 85th Texas Legislature (Regular Session, 2017), and, specifically, Article VI, Railroad Commission Rider 5, which requires the amounts appropriated from general revenue for state fiscal years 2018 and 2019 to cover the cost of permitting and inspecting coal mining operations. This requirement is contingent upon the Commission assessing fees sufficient to generate, during the 2018-2019 biennium, revenue to cover the general revenue appropriations.

The Commission proposes to amend the fees set forth in subsection (b) by amending the calendar years to 2017 and 2018. The Commission proposes to amend paragraph (1) to decrease the annual fee for each acre of land within a permit area covered by a reclamation bond on December 31st of each year, as shown on the map required at §12.142(2)(C) of this chapter (relating to Operation Plan: Maps and Plans), from the current $13.05 to $12.85. The Commission proposes to amend paragraph (2) to decrease the annual fee for each permit in effect on December 31st of a year to $6,170 from the current amount of $6,600. The Commission anticipates that annual fees in these new amounts will result in revenue of $2,556,180 in each year of the 2018-2019 biennium.

J. Denny Kingsley, Director, Surface Mining and Reclamation Division, has determined that during each year of the first five years the proposed amendments would be in effect, the net effect on state government as a result of enforcing the proposed amendments would be zero. There are no fiscal impacts on local governments.

The Commission's coal mining regulatory program is partially funded with a 50 percent cost reimbursement grant from the United States Department of the Interior, Office of Surface Mining Reclamation and Enforcement. The appropriated state share of the cost for implementing this regulatory program, $2,615,236 in FY 2018 and $2,612,850 in FY 2019, is funded from fees paid by the regulated coal mining industry.

Fees for the Commission's surface coal mining regulatory program come from two general categories: application fees and annual fees. The application fees are specified in §12.108(a) and the Commission does not propose to revise these fees in this rulemaking. Annual fee collection is based on the bonded acreage for each permit as of December 31st of each year. The Commission may adjust the annual fees in future rulemakings if additional funding is needed due to changes in: federal funding, legislative appropriations, the number of permits, the amount of funds received from application fees, the amount of bonded acreage, or other relevant factors.

The total amount of annual fees required to fund the regulatory program was determined by subtracting the total amount of application fees estimated to be collected in each fiscal year from the estimated annual state share cost for FY 2018: $2,615,236. Mr. Kingsley estimates that the Commission will collect application fees annually in the amount of $60,000 in both FY 2018 and FY 2019. The remainder in state share expense ($2,555,236.00) is then allocated for collection from annual fees. In accordance with an agreement with industry established in 2005, the total remaining amount of annual fees required is allocated at seven percent for annual permit fees and 93 percent from bonded acreage fees. The proposed annual fee rates are then determined based on the estimated permit status and bonded acres on December 31, 2017.

Staff divided the seven percent to be collected from annual permit fees ($178,866.52) by 29 (the estimated number of permits on December 31, 2017) to derive the individual permit annual fee of $6,170 proposed in subsection (b)(2). The remaining 93 percent to be collected through the bonded acreage fee ($2,376,369.48) was divided by 185,000 acres, the cumulative acres the Commission estimates will be under bond on December 31, 2017, to derive the $12.85 per bonded acre fee proposed in subsection (b)(1).

Mr. Kingsley has determined that during each year of the first five years the proposed amendments would be in effect there will be a decrease in the economic cost to the mining industry of approximately $49,470. This is based on: (1) a comparison of the revenue that would be generated under the current annual fee of $13.05 per bonded acre to the revenue that would be generated under the proposed decrease to $12.85 per bonded acre; and (2) a comparison of the revenue generated under the current annual fee of $6,600 per permit to the revenue that would be generated under the proposed decreased amount of $6,170 for each of the 29 permits in existence.

Mr. Kingsley has determined that the public benefit resulting from the new fee structure for coal mining activities is the alignment of fees paid by the coal mining industry with the costs incurred by the Commission, as required by Senate Bill 1.

In accordance with Texas Government Code §2006.002, the Commission has determined that there will be no adverse economic effects on rural communities, small businesses, or micro-businesses resulting from the proposed amendments; therefore, the Commission has not prepared the economic impact statement or regulatory flexibility analysis described in §2006.002(c).

The proposed amendments also will not affect a local economy; therefore, the Commission has not prepared a local employment impact statement pursuant to Texas Government Code §2001.022.

Lastly, the Commission has determined that the proposed rule does not meet the statutory definition of a major environmental rule as set forth in Texas Government Code §2001.0225; therefore, a regulatory analysis pursuant to that section is not required.

Comments on the proposal may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings; or by electronic mail to rulescoordinator@rrc.texas.gov. The Commission will accept comments until 12:00 p.m. (noon) on Monday, November 6, 2017, which is 31 days after publication in the Texas Register. The Commission finds that this comment period is reasonable because the proposal and an online comment form will be available on the Commission's web site more than two weeks prior to Texas Register publication of the proposal, giving interested persons additional time to review, analyze, draft, and submit comments.

The Commission encourages all interested persons to submit comments on the proposal no later than the deadline. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Mr. Kingsley at (512) 463-6901. The status of pending Commission rulemakings is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.

The Commission proposes the amendments under Texas Natural Resources Code, §134.013, which authorizes the Commission to promulgate rules pertaining to surface coal mining operations and §134.055, which authorizes the Commission to collect annual fees.

Statutory authority: Texas Natural Resources Code, §134.013 and §134.055.

Cross-reference to statute: Texas Natural Resources Code, §134.013 and §134.055.

Issued in Austin, Texas, on September 19, 2017.

§12.108.Permit Fees.

(a) Application Fees. Each application for a surface coal mining and reclamation permit or renewal or revision of a permit shall be accompanied by a fee. The initial application fee and the application fee for renewal of a permit may be paid in equal annual installments during the term of the permit. The fee schedule is as follows:

(1) application for a permit: $5,000.

(2) application for revision of a permit: $500.

(3) application for renewal of a permit: $3,000.

(b) Annual Fees. In addition to application fees required by this section, each permittee shall pay to the Commission the following annual fees for calendar years 2017 [2015] and 2018 [2016] due and payable not later than March 15th of the year following the calendar year for which these fees are applicable:

(1) a fee of $12.85 [$13.05] for each acre of land within a permit area covered by a reclamation bond on December 31st of the year, as shown on the map required by §12.142(2)(C) of this chapter (relating to Operation Plan: Maps and Plans); and

(2) a fee of $6,170 [$6,600] for each permit in effect on December 31st of the year.

(c) Fees paid to the Commission under this section shall be deposited in the state treasury and credited to the general revenue fund.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 19, 2017.

TRD-201703686

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 475-1295


PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 64. TEMPORARY COMMON WORKER EMPLOYERS

16 TAC §§64.1, 64.10, 64.20, 64.70, 64.72, 64.80

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 64 §§64.1, 64.10, 64.20, 64.70, 64.72, and 64.80, regarding the Temporary Common Worker Employers program.

JUSTIFICATION AND EXPLANATION OF THE RULES

This proposal repeals the existing rules of the Texas Commission of Licensing and Regulation (Commission), the Department's governing body, regarding the licensing and regulation of temporary common worker employers by the Department. The existing rules under 16 TAC Chapter 64 implemented Texas Labor Code, Chapter 92.

The repeal of the existing rules is necessary to implement Senate Bill (S.B.) 2065, 85th Legislature, Regular Session, 2017. This bill, in part, repealed the state licensing requirements for temporary common worker employers under Texas Labor Code, Chapter 92, Temporary Common Worker Employers. S.B. 2065 preserved the provisions in Chapter 92 regarding the standards of conduct and practice for temporary common worker employers and the provision allowing municipalities over 1 million people to impose stricter standards of conduct and practice. As amended by S.B. 2065, unless prohibited by a governmental subdivision, a temporary common worker employer is authorized to operate in the state if it meets the requirements of Chapter 92. A governmental subdivision may enforce Chapter 92 within the boundaries of the governmental subdivision. These statutory changes were effective September 1, 2017.

This proposal repeals the existing rules for the Temporary Common Worker Employers Program under 16 TAC Chapter 64 §§64.1, 64.10, 64.20, 64.70, 64.72, and 64.80. As of September 1, 2017, the Department no longer licenses or regulates temporary common worker employers.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal of the rules is in effect, there will be a reduction in costs to the State. While S.B. 2065 repealed the state licensing requirements under Texas Labor Code, Chapter 92, the rules under 16 TAC Chapter 64 implemented the Temporary Common Worker Employers Program. There will be a reduction in costs to the State in the amount of $3,700 each year for the first five years due to the Department no longer needing to pay full time employees (FTEs) to administer and enforce the program. No FTEs worked on this program on a full-time basis, so there is no loss of FTEs.

In addition, Mr. Francis has determined that for each year of the first five years the proposed repeal of the rules is in effect, there will be a loss of revenue to the State. While S.B. 2065 repealed the state licensing requirements under Texas Labor Code, Chapter 92, the rules under 16 TAC Chapter 64 set out the specific fee amounts that were paid to the Department. Temporary common worker employers paid $30 in license application fees and $30 in annual license renewal fees. Elimination of the application and annual renewal fees will result in a loss of revenue to the State in the amount of $3,700 each year for the first five years.

Mr. Francis has determined that for each year of the first five years the proposed repeal of the rules is in effect, enforcing or administering the proposed repeal of the rules does not have foreseeable implications relating to costs or revenues of local governments. Local governments may have cost or revenue implications based on changes to the statute as amended by S.B 2065; however, any cost or revenue implications are not a result of the proposed repeal of the rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal of the rules may affect the local economy, so the agency has prepared the following local employment impact statement, as required under Government Code §2001.022.

S.B. 2065 repealed the state licensing requirements for temporary common worker employers under Texas Labor Code, Chapter 92. The proposed repeal of the rules eliminates the initial and renewal license applications and fees and other licensing requirements. The proposed repeal of the rules does not eliminate or restrict the actual business of any temporary common worker employers. These employers will continue to operate as before but without the need for a state license and without some licensing and operating costs associated with the rules. These savings could potentially result in a lowering of prices for the hiring of common workers, which could potentially result in more common workers being hired for each year of the first five years the proposed repeal is in effect. There is no data, however, to support these potential effects on the local economy and on local employment since is unknown what each temporary common worker employer may or may not do.

Texas Labor Code, Chapter 92 authorizes municipalities that have populations greater than one million to impose stricter standards of conduct and practice than those set out under the statute. Currently, there are three municipalities with over one million people. If these three municipalities choose to impose stricter standards, it could possibly impact local employment in those municipalities. This potential impact, however, would be a result of the statute as amended by S.B. 2065, not by the proposed repeal of the rules.

In addition, Texas Labor Code, Chapter 92 provides that unless prohibited by a governmental subdivision, a temporary common worker employer is authorized to operate in the state if it meets the statutory requirements. If a governmental subdivision chooses to prohibit a temporary common worker employer from operating within the boundaries of the governmental subdivision, it could possibly impact local employment in that governmental subdivision. This potential impact, however, would be a result of the statute as amended by S.B. 2065, not by the proposed repeal of the rules.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal of the rules is in effect, the public benefit will be elimination of obsolete rules. The rules under 16 TAC Chapter 64 implemented the state licensing requirements under Texas Labor Code, Chapter 92. The state licensing requirements were repealed by S.B. 2065. In addition, the repeal of the state licensing requirements under Chapter 92 and the associated rules eliminate the cost of a state regulatory program with a small license population, zero to little enforcement activity, and minimal risk of consumer harm. There will be less of a tax burden on taxpayers. Companies will no longer be required to submit initial or renewal license applications and fees or meet other rule requirements that had associated costs. There will be less of a regulatory burden on the businesses in this industry. While there is no supporting data and it is unknown what temporary common worker employers may or may not do, the proposed repeal of the rules and the reduction in regulatory burdens may potentially enable a reduction in prices for users of common workers, potentially enable the employment of more common workers, and potentially allow local employers to complete additional work. Finally, there are still protections for common workers in the statute. Temporary common worker employers still have to meet standards of conduct and practice requirements under Chapter 92, and municipalities over 1 million people may impose stricter standards of conduct and practice. In addition, a governmental subdivision may enforce Chapter 92 within the boundaries of the governmental subdivision.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal of the rules is in effect, there will be a reduction in costs to persons who are required to comply with the proposed repeal of the rules. Temporary common worker employers will no longer have to pay $30 in license application fees or $30 in annual license renewal fees. The elimination of the application and annual renewal fees will be a reduction in costs in the amount of $3,700 each year for the first five years. In addition, there may be a decrease in costs from the elimination of rules that impose certain requirements on licensees, such as vehicle, insurance, and waiting room requirements. The Department is not able to estimate what specific cost-savings, if any, temporary common worker employers may receive as a result of the repeal of these rules.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS -- FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal of the rules.

Since the agency has determined that the proposed repeal of the rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed repeal of the rules does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. In addition, the repeal is necessary to implement legislation, which is an exception under §2001.0045(c). Therefore, the agency is not required to take any further action under Government Code §2001.0045.

PUBLIC COMMENTS

Comments on the proposal may be submitted to Pauline Easley, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The repeal of the existing rules is proposed under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and Texas Labor Code, Chapter 92. No other statutes, articles, or codes are affected by the proposal.

§64.1.Authority.

§64.10.Definitions.

§64.20.Licensing Requirements General.

§64.70.Duties of a License Holder.

§64.72.Licensee Labor Hall Responsibilities.

§64.80.Fees

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703708

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


CHAPTER 65. BOILERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 65, Subchapter A, §65.1 and §65.2; Subchapter C, §§65.12 - 65.15; Subchapter D §65.25; Subchapter E §65.30; Subchapter G, §65.45; Subchapter J, §65.72; Subchapter N, §65.217; Subchapter O, §65.300; Subchapter R, §§65.601, 65.603, 65.606 - 65.609; proposes repeal of current Subchapter I, §65.63; and proposes new Subchapter I, §65.63 and §65.64, regarding the Boilers program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The Texas Legislature enacted House Bill 3257 (HB 3257), 85th Legislature, Regular Session (2017), which set the periodicity of portable boiler inspections. Editorial corrections and clarifications are also being proposed. The proposed amendments, repeal and new rules are necessary to implement HB 3257.

The proposed amendments to §65.1 corrects the statutory authority.

The proposed amendments to §65.2 removes the definitions for "existing installations" and "new installations" since the terms are not used in this program. Editorial changes are also made to renumber the section accordingly.

The proposed amendments to §65.12 clarifies the current certificate of operation to be displayed at or near the boiler, or otherwise readily accessible to an inspector.

The proposed amendments to §65.13 clarifies the process to test-fire and operate a newly installed boiler and the Temporary Operating Permit.

The proposed amendments to §65.14 corrects the name of the National Board Commission and requires the applicant to demonstrate they meet eligibility requirements.

The proposed amendments to §65.15 changes the title of the section to correctly name boiler certification requirements and clarify when inspection reports and written authorization are needed.

The proposed amendments to §65.25 changes the title of the section to correctly name authorized inspector requirements.

The proposed amendments to §65.30 clarifies the requirement for the applicant to demonstrate they meet eligibility requirements.

The proposed amendments to §65.45 removes "portable boiler" language in the title and section to be placed in a new section.

The proposed repeal of current §65.63 is to renumber it to proposed new §65.64.

The proposed new §65.63 establishes the requirements of HB 3257.

The proposed amendments to §65.72 further identify which stamped tag designates the boiler as condemned and clarify the decal which shall be altered/defaced.

The proposed amendments to §65.217 adds a reference and makes an editorial change.

The proposed amendments to §65.300 corrects the title to reflect all fees and specifies who is required to pay each fee.

The proposed amendments to §65.601 clarifies existing language to reflect practice and makes editorial changes.

The proposed amendments to §65.603 clarifies where the record of calibration must be placed.

The proposed amendments to §65.606 corrects the title of the section to reflect practice.

The proposed amendments to §65.607 makes editorial changes.

The proposed amendments to §65.608 makes editorial changes.

The proposed amendments to §65.609 makes editorial changes.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal impact on the revenue of local or state government.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit as boilers will be inspected on a regular schedule which is not possible or highly impracticable under the current rules which require an inspection each time the portable boiler is moved. The establishment of a definite schedule for inspection ensures the safe operation of the equipment to prevent harm to the unsuspecting public.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there will be a reduction in operating costs to boiler owners and operators because an annual inspection will allow the boiler to remain in service and available for operations rather than being out of service awaiting an inspection.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS - FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed amendments, new rules and repeal.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed amendments, new rule and repeal do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §65.1, §65.2

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.1.Authority.

This chapter is promulgated [adopted] under authority of Texas Health and Safety Code, Chapter 755 and Texas Occupations Code, Chapter 51.

§65.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (25) (No change.)

[(26) Existing Installation--Any boiler constructed, installed, placed in operation, or contracted for before June 3, 1937.]

(26) [(27)] External Inspection--An inspection of the exterior of a boiler and its appurtenances that is made, if possible, while the boiler is in operation.

(27) [(28)] Heat Recovery Steam Generator (HRSG)--A boiler which produces steam where its principle source of thermal energy is a hot gas stream having high ramp rates, such as the exhaust of a gas turbine.

(28) [(29)] Heating Boiler--A steam heating boiler, hot water heating boiler, hot water supply boiler, or potable water heater that is directly fired with oil, gas, solar energy, electricity, coal, or other solid or liquid fuel.

(29) [(30)] High-Temperature Water Boiler--A water boiler designed for operation at pressures exceeding 160 pounds per square inch gage (1100 kilopascals) or temperatures exceeding 250 degrees Fahrenheit (121 degrees Celsius).

(30) [(31)] Hot Water Heating Boiler--A boiler designed for operation at a pressure not exceeding 160 pounds per square inch gage (1100 kilopascals) or temperatures not exceeding 250 degrees Fahrenheit (121 degrees Celsius) at or near the boiler outlet.

(31) [(32)] Hot Water Supply Boiler--A boiler designed for operation at pressures not exceeding 160 pounds per square inch gage (1100 kilopascals) or temperatures not exceeding 250 degrees Fahrenheit (121 degrees Celsius) at or near the boiler outlet if the boiler's heat input exceeds 200,000 British thermal units per hour (58.6 kilowatts); water temperature exceeds 210 degrees Fahrenheit (99 degrees Celsius); or nominal water-containing capacity exceeds 120 gallons (454 Liters).

(32) [(33)] Immersion Resistance Element Type Boiler--An electric boiler in which heat is generated by the passage of an electric current through a resistance heating element immersed in water.

(33) [(34)] Inspection Agency--An authorized inspection agency providing inspection services.

(34) [(35)] Inspector--The chief inspector, a deputy inspector, or an authorized inspector.

(35) [(36)] Install--To place, position or fit into position and then to connect, change or modify in such a manner as to bring the boiler into service.

(36) [(37)] Installation--The act of installing a boiler or associated equipment.

(37) [(38)] Internal inspection--A complete and thorough inspection of the interior waterside and fireside areas of a boiler as construction allows.

(38) [(39)] Maximum Allowable Working Pressure (MAWP)--The greatest pressure at which a boiler is designed to operate.

(39) [(40)] Metric (SI)--An international system of measurement.

(40) [(41)] Metrication--The process of converting between US customary units and metric (SI) units.

(41) [(42)] Modular Boiler--A steam or hot water heating assembly consisting of a group of individual boilers called modules, intended to be installed as a unit, with a single inlet and single outlet. Modules may be under one jacket or may be individually jacketed.

(42) [(43)] Multiple Pressure Steam Generator--A boiler consisting of several sections of heat exchange surface designed for different pressure levels.

(43) [(44)] National Board--The National Board of Boiler and Pressure Vessel Inspectors.

(44) [(45)] National Board Inspection Code--The manual for boiler and pressure vessel inspectors published by the National Board.

[(46) New Installations--A boiler constructed, installed, or placed in operation after June 3, 1937.]

(45) [(47)] Nominal--The accepted ASME standard used to designate a size or capacity of an item.

(46) [(48)] Non-Code Boiler--A complete boiler not constructed to the appropriate ASME Code.

(47) [(49)] Nonstandard Boiler--A boiler that does not qualify as a standard boiler.

(48) [(50)] Nuclear Boiler--A nuclear power plant system, including its pressure vessels, piping systems, pumps, valves, and storage tanks that produces and controls an output of thermal energy from nuclear fuel and the associated systems essential to the function of the power system.

(49) [(51)] Owner or Operator--Any person, firm, or corporation owning or operating boilers within the State of Texas.

(50) [(52)] Person--An individual, corporation, partnership, association or other legal entity.

(51) [(53)] Pool Heater--A hot water supply boiler or a potable water heater designed to provide hot water to a pool.

(52) [(54)] Portable [Power] Boiler--A boiler primarily intended for use at a temporary location.

(53) [(55)] Potable Water Heater--A boiler designed for operation at pressures not exceeding 160 pounds per square inch gage (1100 kilopascals) and water temperatures not exceeding 210 degrees Fahrenheit (99 degrees Celsius) if the boiler's heat input exceeds 200,000 British thermal units per hour (58.6 kilowatts) or nominal water-containing capacity exceeds 120 gallons (454 liters).

(54) [(56)] Power Boiler--A high-temperature water boiler or a boiler in which steam is generated at a pressure exceeding 15 pounds per square inch gage (103 kilopascals) for a purpose external to the boiler.

(55) [(57)] Preliminary order--A written order issued by the chief inspector or any commissioned boiler inspector to require repairs or alterations to render a boiler safe for use or to require that operation of the boiler be discontinued. The Boiler Inspection report which requires repairs to be made or the boiler operation to be ceased which is signed by the chief inspector or a commissioned boiler inspector is a Preliminary Order.

(56) [(58)] Process Steam Generator--An evaporator, heat exchanger, or vessel in which steam is generated by the use of heat resulting from the operation of a processing system that contains a number of pressure vessels, such as used in the manufacture of chemical and petroleum products.

(57) [(59)] Reinstalled Boiler--A boiler removed from its original setting and reinstalled at the same location or at a new location without change of ownership.

(58) [(60)] Repair--The work necessary to restore pressure-retaining items to a safe and satisfactory operating condition.

(59) [(61)] Rules--The rules promulgated and enforced by the commission in accordance with Texas Health and Safety Code, §755.032 and Texas Occupations Code, Chapter 51.

(60) [(62)] Safety Appliance--A safety device such as a safety valve or a pressure relief valve for a boiler provided to diminish the danger of accidents.

(61) [(63)] Secondhand Boiler--A boiler in which the location and ownership have changed.

(62) [(64)] Serious Accident--An explosion resulting in any degree of distortion to the wall of the boiler or related equipment or damage to the building where the boiler is located. Or, emergency medical services are dispatched to the location of a boiler accident in which one or more persons require on-site medical services, transport to a medical facility or the accident results in a fatality.

(63) [(65)] Special Inspection--An inspection by the chief inspector or deputy inspector other than those in Texas Health and Safety Code, §§755.025 - 755.027.

(64) [(66)] Stacked Boiler--A design in which one boiler is placed onto a rack above another boiler, as designed by the boiler manufacturer with a rack nameplate, and as approved by the department.

(65) [(67)] Standard Boiler--A boiler that bears the stamp of a nationally recognized engineering professional society, or the stamp of any jurisdiction that has adopted a standard of construction equivalent to the standard required by the executive director.

(66) [(68)] Steam Heating Boiler--A boiler designed for operation at pressures not exceeding 15 pounds per square inch gage (103 kilopascals).

(67) [(69)] System Pressure--The pressure of the boiler system, which is governed by the highest safety valve or pressure relief valve set pressure as allowed by ASME Code and this chapter.

(68) [(70)] Texas Commission--Authorization to inspect boilers and enforce Texas Health and Safety Code, Chapter 755, and 16 Texas Administrative Code, Chapter 65, on behalf of the department.

(A) ASME Only Commission--Only authorizes an inspector to conduct ASME new construction activities.

(B) In-Service Only Commission--Only authorizes an inspector to conduct boiler in-service activities.

(C) ASME and In-Service Commission--Authorizes an inspector to conduct both activities in subparagraphs (A) and (B).

(69) [(71)] Unfired Steam Boiler--An unfired pressure vessel in which steam is generated. The term does not include: vessels known as evaporators or heat exchangers; or vessels in which steam is generated by using the heat that results from the operation of a processing system that contains a number of pressure vessels, as used in the manufacture of chemical and petroleum products.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703782

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER C. BOILER REGISTRATION AND CERTIFICATE OF OPERATION--REQUIREMENTS

16 TAC §§65.12 - 65.15

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.12.Boiler Registration and Certificate of Operation Required.

Except as provided by this chapter, each boiler operated in this state must:

(1) be registered with the department; and

(2) have qualified for a current certificate of operation with the current certificate of operation displayed at or near the boiler, or readily accessible to an inspector.

§65.13.Boiler Installation.

(a) (No change.)

(b) The boiler shall not be test-fired or operated prior to the required first inspection except as allowed under subsection (c).

(c) Temporary Operating Permit.

(1) The owner or operator may request a Temporary Operating Permit on a department-approved form.

(2) The owner or operator must pay the applicable fee required under §65.300.

(3) Upon approval of the Temporary Operating Permit from the department, the boiler may be operated [for thirty (30) days] prior to the required initial inspection for up to thirty (30) days.

§65.14.Inspector Commissions.

(a) In-Service Commission. To be eligible for in-service commission, an applicant must:

(1) submit a completed application on a department-approved form demonstrating eligibility;

(2) successfully pass a criminal background check;

(3) pass a written examination approved by the department;

(4) attend a department-approved boiler orientation program; and

(5) pay the fee required under §65.300.

(b) Texas ASME Commissions. To be eligible for a Texas ASME commission, an applicant must:

(1) submit a completed application on a department-approved form;

(2) successfully pass a criminal background check;

(3) hold a valid National Board Authorized Inspector ["A" Endorsement] Commission; and

(4) pay the fee required under §65.300.

§65.15.[Initial] Boiler Certification Requirements.

(a) To be eligible for a certificate of operation each boiler must meet the following:

(1) comply with §65.200;

(2) have an applicable [a completed first] inspection report completed;

(3) if necessary, complete required repairs; and

(4) pay the fees required under §65.300.

(b) (No change.)

(c) Non-code boilers may not be installed or operated without written authorization from the department.

(1) Non-code boilers, if installed without written authorization from the department, must be completely replaced to ensure the complete boiler meets or exceeds ASME code and this chapter.

(2) Installing code compliant parts onto a non-code boiler does not make a non-code boiler ASME code compliant.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703783

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER D. AUTHORIZED INSPECTOR

16 TAC §65.25

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.25.Authorized Inspector--Eligibility Requirements.

To be an authorized inspector, an applicant must have at least five years' experience in the construction, installation, inspection, operation, maintenance, or repair of boilers.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703784

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER E. EXAMINATIONS AND WAIVER OF EXAMINATION

16 TAC §65.30

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.30.Waiver of Examination.

An applicant for a Texas Commission who is licensed or commissioned in another state that has an examination substantially equivalent to that required by this chapter, as determined by the department, may obtain a commission without examination, if the person:

(1) submits a completed application on a department-approved form demonstrating eligibility; and

(2) except for the examination requirement otherwise meets the requirements in Subchapter F.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 27, 2017.

TRD-201703850

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER G. APPLICATION TO OPERATE PORTABLE AND STATIONARY NONSTANDARD BOILERS IN THE STATE

16 TAC §65.45

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.45.[Portable and Stationary] Nonstandard Boilers.

(a) Operation of a [portable or stationary] nonstandard boiler is prohibited unless the department has granted approval as a nonstandard boiler used for exhibition, instruction, education, show, display, or demonstration.

(b) - (c) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703785

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER I. INSPECTION OF BOILERS

16 TAC §65.63

The repeal is proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 repeal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.63.Extension of Interval between Internal Inspections.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703780

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


16 TAC §65.63, §65.64

The new rules are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.63.Inspection of Portable Boilers.

The internal and external inspection of Portable Boilers shall occur as follows:

(1) Boilers fabricated in accordance with the ASME Section I (i.e. "S" or any other Section I Designator) shall be inspected annually;

(2) Boilers fabricated in accordance with the ASME Section IV, "H" Designator shall be inspected biennially;

(3) Boilers fabricated in accordance with the ASME Section IV, "HLW" Designator shall be inspected triennially; and

(4) Boilers designated as a Nonstandard Boiler in accordance with §65.43, shall be inspected annually.

§65.64.Extension of Interval between Internal Inspections.

(a) For the interval between internal inspection to be extended as provided for in Texas Health and Safety Code, §755.026, the following procedure must be followed.

(1) Not less than thirty (30) days and not more than sixty (60) days prior to the expiration date of the current certificate of operation, the owner or operator shall submit in a manner prescribed by the department a request for each boiler, stating the desired length of extension, which will be no more than one (1) year from the expiration date of the current certificate of operation, the date of the last internal inspection, and a statement certifying that records are available showing compliance with Texas Health and Safety Code, §755.026, and pay the required fees.

(2) The department shall notify the owner or operator and the inspection agency having jurisdiction of the maximum extension period that may be approved.

(3) Prior to the expiration of the current certificate of operation, the inspection agency shall review all records, make an external inspection, and submit the external inspection report to the department.

(4) Upon completion of paragraphs (1) - (3) and payment of all required fees, a new certificate of operation may be issued for the extended period of operation.

(5) Violations noted during the external inspection may be cause for denial of the extension request.

(6) If the department denies an extension request, the boiler shall be internally inspected prior to the expiration of the certificate of operation, unless authorized in writing to continue operation until an internal inspection can be conducted.

(b) An additional extension for up to one hundred twenty (120) days may be allowed as provided for in Texas Health and Safety Code, §755.026, when it is established an emergency exists.

(1) Prior to the expiration date of the current certificate the owner or operator shall submit to the department a request stating an emergency exists with an explanation of the emergency and the date of the last internal inspection. The request shall be submitted along with the inspection agency's external inspection report, confirming compliance with Texas Health and Safety Code, §755.026.

(2) The department shall notify the owner or operator and the inspection agency having jurisdiction of the maximum extension period that may be approved.

(3) Upon completion of paragraphs (1) and (2) and payment of all required fees, a new certificate of operation may be issued for the extended period of operation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703781

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER J. TEXAS BOILER NUMBERS

16 TAC §65.72

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.72.Condemned Boilers.

(a) Any boiler, stamped or identified with the corrosion-resistant metal tag, having been inspected and declared unsafe by the chief inspector, deputy inspector or executive director, shall be stamped by the inspector with an "X" on the star on either side of the Texas boiler number. The "X" stamped tag identifies/designates the boiler as condemned.

(b) Any boiler, identified with the Texas boiler number decal, having been inspected and declared unsafe by the chief inspector or deputy inspector, shall have the decal [be] altered/defaced by the inspector by removing the star on either side of the Texas boiler number on the decal. The altered/defaced decal identifies/designates the boiler as condemned.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703786

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER N. RESPONSIBILITIES OF THE OWNER AND OPERATOR

16 TAC §65.217

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.217.Variance.

(a) - (g) (No change.)

(h) An approved variance must be posted [under glass,] next to the certificate of operation[,] of the boiler for which it is issued, in accordance with §65.12.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703787

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER O. FEES

16 TAC §65.300

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.300.[Certificate/Inspection] Fees.

(a) Certificate of operation. The owner or operator shall make payment for the following fees:

(1) On or before expiration date--$70; in addition to all outstanding invoices, including any past due invoices associated with the boiler.

(2) After expiration date--Late fees for certificates are provided for under §60.83 of this title (relating to Late Renewal Fees).

(3) Duplicate--$25

(b) Inspections. The owner or operator shall make payment for the following fees:

(1) Heating boilers.

(A) With an inspection opening--$70

(B) Without an inspection opening--$40

(2) Other than heating boilers--$70

(c) Special inspections or non-standard boiler reviews. The owner or operator shall make a[--] $1,700 fee payment, which must be received by the department before the department may schedule [scheduling] the requested special inspection or non-standard boiler review.

(d) Commission Fees. The Authorized Inspector seeking or holding the Commission shall make payment for the following fees:

(1) New--$50

(2) Reinstatement--$50

(3) Renewal--$50

(4) Duplicate--$25

(5) Reissuance after re-employment--$50

(6) Late renewal fees for commissions issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(e) Authorized Inspection Agency/Letter of Recognition. The authorized Inspection Agency shall make payment for the following fees:

(1) Original Application--$100

(2) Renewal Application--$100

(f) Variances. The owner or operator shall make a[--] $50 fee payment.

(g) Extensions. The owner or operator shall make a[--] $100 fee payment.

(h) Re-Stamping. The owner or operator shall make a[--] $50 fee payment.

(i) Boiler Installation Reports. The owner or operator shall make a[--] $25 fee payment.

(j) Overdue Boiler Inspection Fee. The owner or operator shall make a[--] $260 fee payment to the agency assigned by the department in accordance with §65.91.

(k) Temporary Operating Permit Fee. The owner or operator shall make a[--] $50 fee payment.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703788

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


SUBCHAPTER R. TECHNICAL REQUIREMENTS

16 TAC §§65.601, 65.603, 65.606 - 65.609

The amendments are proposed under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the proposal.

§65.601.General Safety.

(a) A boiler that is deemed unsafe for operation by the inspector shall be removed from service or placed in a safe condition in the following manner:

(1) the Inspector must notify the owner/operator about:

(A) the prohibition against operating an unsafe boiler;

(B) any insurance policy provisions, if any, that may exclude insurance coverage for operating an unsafe boiler;

(C) possible administrative penalties for operating an unsafe boiler; and

(D) request the immediate but voluntary shut-down of the boiler; [or]

(2) if the owner/operator refuses to immediately shut the boiler down, before leaving the premise on which the unsafe boiler is located, the Inspector must notify the Chief Boiler Inspector about the condition of the unsafe boiler.

(b) Upon receipt of the notice required by subsection (a)(2), the Chief Inspector shall assign a Deputy Inspector to confirm that an unsafe condition exists [exist] and, if confirmed, to declare the boiler unsafe for operation [render the boiler inoperative] by placing a red tag on the boiler prohibiting continued operations of the [unsafe] boiler.

(c) The continued operation of an unsafe boiler shall subject the owner/operator to administrative penalties as provided for in this chapter.

§65.603Boiler Room Ventilation

(a) - (c) (No change.)

(d) Carbon Monoxide Detectors shall be calibrated every eighteen months and a record of calibration shall be posted at or near the boiler, or readily accessible to an inspector [in a conspicuous place].

§65.606.Atmospheric Vents, Gas Vents, Bleed or Relief Lines for Power Boilers, Unfired Steam Boilers and Process Steam Generators with Supplemental Firing (extensions only).

(a) Gas pressure regulators not incorporating integral vent limiters, and all other gas train components requiring atmospheric air pressure to balance a diaphragm or other similar device, shall be provided with a connection for a vent line.

(1) The vent lines in subsection (a) shall be:

(A) sized in accordance with the component manufacturer's instructions; and

(B) at least the same size as the vent outlet of the device.

(2) Where there is more than one gas pressure regulator at a location, each gas pressure regulator shall have a separate vent. The vent lines may be manifolded in accordance with accepted engineering practices to minimize back pressure in the event of a diaphragm failure (see subsections (c) and (d)).

(3) A gas pressure regulator shall not be vented into the boiler flue or exhaust system.

(b) Gas pressure relief valves may discharge into common manifolding only with other gas vent, bleed, or relief lines. When manifolded, the common vent line shall have a cross-sectional area not less than the area of the largest vent line plus 50% of the areas of the additional vent lines.

(c) Atmospheric vent lines, when manifolded, shall be connected into a common atmospheric vent line, having a cross-sectional area not less than the area of the largest vent line, plus 50% of the areas of the additional vent lines.

(d) Atmospheric vent lines shall not be connected to any common or manifolded gas vent, bleed, or relief lines.

(e) All vent and relief lines shall be:

(1) piped to the outdoors at a safe point of discharge, so there is no possibility of discharged gas being drawn into the air intake, ventilating system, or openings of any structure or piece of equipment;

(2) shall extend sufficiently above any structure, so that gaseous discharge does not present a fire hazard; and

(3) a means shall be provided at the terminating point to prevent blockage of the line by foreign material, moisture, or insects.

§65.607.Power Boilers, Excluding Unfired Steam Boilers and Process Steam Generators

(a) - (b) (No change.)

(c) Water level indicators.

(1) Each boiler, except forced-flow steam generators with no fixed steam and waterline, and high-temperature water boilers of the forced circulation type that have no steam and waterline shall have at least one water gage glass.

(2) Except for electric boilers of the electrode type, boilers with a MAWP over 400 psig (three (3) megapascals) shall be provided with two water gage glasses, which may be connected to a single water column or connected directly to the drum.

(3) Two independent remote level indicators may be provided instead of one of the two required gage glasses for boiler drum water level indication, when the MAWP is above 400 psig (three (3) megapascals). When both remote level indicators are in reliable operation, the remaining gage glass may be shut off, but shall be maintained in serviceable condition.

(4) - (8) (No change.)

(d) - (i) (No change.)

§65.608.Unfired Steam Boilers.

(a) - (d) (No change.)

(e) Water level indicators.

(1) ASME Code, Section I, unfired steam boilers with a MAWP of 400 psig (three (3) megapascals) or less, shall have at least one gage glass. For a MAWP over 400 psig ( three (3) megapascals), shall have two required gage glasses. When two gage glasses are required, one of the gage glasses may be replaced by two independent remote level indicators that are maintained in simultaneous operation while the boiler is in service.

(2) - (7) (No change.)

(f) - (h) (No change.)

§65.609.Process Steam Generators.

(a) - (e) (No change.)

(f) Water level indicators.

(1) ASME Code, Section I, process steam generators with a MAWP of 400 psig (three (3) megapascals) or less shall have at least one gage glass. For a MAWP over 400 psig (three (3) megapascals), shall have two required gage glasses. When two gage glasses are required, one of the gage glasses may be replaced by two independent remote level indicators that are maintained in simultaneous operation while the process steam generator is in service.

(2) - (7) (No change.)

(g) - (i) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703789

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


CHAPTER 82. BARBERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 82, §§82.10, 82.20, 82.22, 82.23, 82.29, 82.40, 82.50, 82.52, 82.54, 82.70 - 82.72, 82.78, 82.80, 82.102, and 82.108; and proposes the repeal of current §82.53, regarding the Barbers program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The Texas Legislature enacted Senate Bill 1503, Senate Bill 2065, House Bill 2738, and House Bill 2739, 85th Legislature, Regular Session (2017). The proposed amendments and repeal include removing the requirement for a shampoo apprentice permit or shampoo specialty certificate; eliminating risk-based inspections; clarifying the definition of barbering to exclude threading; authorizing licensed schools to account for hours on the basis of clock or credit; allowing standards to be established for equivalency and conversion of clock to credit hours and vice versa; removing square footage, chair, and sink requirements for barber schools; and distinguishing between larger and specialty school requirements. The proposed amendments and repeal are necessary to implement the legislative changes.

The proposed amendments to §82.10 correct a reference.

The proposed amendments to §82.20 add the word "specialty" to match current statutory language.

The proposed amendments to §82.22 add a reference regarding specialty shop permits.

The proposed amendments to §82.23 remove specific requirements for barber schools.

The proposed amendments to §82.29 clarify the current requirements for an establishment relocation or change of ownership.

The proposed amendments to §82.40 increase the amount per claim that a student may receive in the event of a school closure.

The proposed amendments to §82.50 remove the reference to risk-based inspections.

The proposed amendments to §82.52 remove risk-based inspections as part of periodic inspections.

The proposed repeal of §82.53 remove risk-based inspections and the classifications.

The proposed amendments to §82.54 allow individuals a full ten days to complete the necessary modification after an inspection.

The proposed amendments to §82.70 correct language to make it consistent throughout the chapter.

The proposed amendments to §82.71 remove shampoo permit requirements, make language consistent, and correct a reference.

The proposed amendments to §82.72 remove shampoo requirements and outdated language and establish equivalency and conversion standards between credit and clock hours.

The proposed amendments to §82.78 clarify language and update a reference.

The proposed amendments to §82.80 remove fees relating to risk-based inspections and renumber the section accordingly.

The proposed amendments to §82.102 streamline language for clarity and quick reference.

The proposed amendments to §82.108 make an editorial change.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed rules are in effect, there may be additional estimated costs to the State as a result of enforcing or administering the rules. The rules remove specific square footage and equipment requirements for barber schools. Removing these requirements could increase the number of applications, licenses, and inspections for barber schools. However, at this time, the Department is unable to estimate the amount or increase in barber schools as a result of these rules. For the first five-year period the proposed rules will not result in any estimated reductions in costs to the State.

For each year of the first five-years the rules will be in effect, there will not be an estimated loss in revenue to the State. Additionally, there may be an increase in revenue to the State as a result of enforcing or administering the proposed rules due to the removal of specific square footage and equipment requirements for barber schools. Removing these requirements could increase the number of application and inspection fees paid for barber schools. However, at this time, the Department is unable to estimate the amount or increase in barber schools as a result of these rules.

Mr. Francis has also determined that for each year of the first five-year period the proposed rules are in effect there will be no additional estimated costs or estimated reductions in costs to local government as a result of enforcing or administering the proposed rules. Furthermore, there will be no estimated loss or increase in revenue to local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit by the removal of square footage and equipment requirements. This proposed rule change will allow more individuals, particularly in rural areas, to operate barber schools and would potentially lower costs for purchasing space or equipment. The proposed rules raise the maximum reimbursement amount per student from the Barber School Tuition Protection Account, which will provide more assistance to students for lost tuition in the event of school closures. Additionally, the proposed rules will now provide facility owners a full ten days to complete corrective modifications and additional time to notify the Department of those modifications. The proposed rules also provide schools with additional guidance for operating on clock or credit hours.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there will be no significant economic cost to persons required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

16 TAC §§82.10, 82.20, 82.22, 82.23, 82.29, 82.40, 82.50, 82.52, 82.54, 82.70 - 82.72, 82.78, 82.80, 82.102, 82.108

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapters 51, 1601 and 1603, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 1601 and 1603. No other statutes, articles, or codes are affected by the proposal.

§82.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (4) (No change.)

(5) Barber Technician--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1601.002(1)(C), (D), (F), and (G) [and (I)].

(6) - (35) (No change.)

§82.20.License Requirements--Individuals.

(a) - (h) (No change.)

(i) Barber Technician/Manicurist Specialty License--To be eligible for a Barber Technician/Manicurist Specialty License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.262.

(j) Barber Technician/Hair Weaving Specialty License--To be eligible for a Barber Technician/Hair Weaving Specialty License, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.263.

(k) (No change.)

§82.22.Permit Requirements--Barbershops, Specialty Shops, Dual Shops, Mini-Barbershops, Mini-Dual Shops, Mobile Shops, and Booth Rental.

(a) - (b) (No change.)

(c) Specialty Shop Permit--To be eligible for a Specialty Shop Permit, an applicant must meet the eligibility requirements set forth in Texas Occupations Code §1601.304 and §1601.305. The categories of Specialty Shop Permits issued by the department are: manicurist and hair weaving.

(d) - (h) (No change.)

§82.23.Permit Requirements--Barber Schools.

(a) - (c) (No change.)

(d) Barber schools that offer instruction to persons seeking a certificate, license, or permit under this chapter must have and maintain at a minimum the following:

(1) a building of permanent construction that must include classroom and practical areas covered in a hard-surface floor covering of tile or other suitable material [and that must also include access to permanent restrooms, adequate drinking fountain and adequate lighting for each room];

[(2) in municipalities with populations of more than 50,000 the building must have a minimum of 2,000 square feet of floor space. In municipalities with populations of 50,000 or less or in an unincorporated area of a county, the building must have a minimum of 1,000 square feet of floor space. Population shall be determined according to the most current decennial census compiled by the United States Census Bureau;]

[(3) at least 10 student work stations that include a chair that reclines, a back bar, and a wall mirror;]

[(4) a sink behind every two workstations;]

[(5) a liquid sanitizer for each workstation;]

[(6) at least 10 classroom chairs and other materials necessary to teach the required subjects;]

(2) [(7)] access to permanent restrooms and adequate drinking fountain facilities; and

(3) [(8)] adequate space, equipment, lighting, and instructional materials to provide quality classroom training to the number of students enrolled [lighting for each room].

(e) Barber schools must comply with all health and safety standards established by this chapter.

§82.29.Establishment Relocation, Change of Ownership, Owner Death or Incompetency.

(a) - (b) (No change.)

(c) If an establishment changes ownership, the new owner must apply for a license within 30 days after the change of ownership. Additionally, a school must be inspected but may continue to operate prior to inspection. A change of ownership includes the following:

(1) For a sole proprietorship, the licensee no longer owns [and/or operates] the establishment.

(2) For a partnership or limited partnership, the partnership is dissolved.

(3) For a corporation or limited liability company,if [the corporation is] sold to another person or entity. A change of ownership does not include corporate officer or stockholder restructuring.

(4) The death or legal incompetency of the owner.

§82.40.Barber School Tuition Protection Account.

(a) - (e) (No change.)

(f) The total payment of a claim from the account may not exceed $2,500 [$1,000]. The total amount of claims paid against a single closed school may not exceed $5,000 [$2,500].

(g) - (j) (No change.)

§82.50.Inspections--General.

(a) Barber establishments shall be inspected periodically[, according to a risk-based schedule,] or as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and this chapter, particularly those requirements relating to public safety, licensing, and sanitation. In addition, the department will make information available to barber establishment owners and managers on best practices for risk-reduction techniques.

(b) - (d) (No change.)

§82.52.Periodic Inspections.

(a) - (d) (No change.)

(e) Based on the results of the periodic inspection, a barber establishment found out of compliance may be reinspected. [may be moved to a risk-based schedule of inspections. The department will notify the owner of a barber establishment, in writing, if the establishment becomes subject to the risk-based inspection schedule and the scheduled frequency of inspection.]

§82.54.Corrective Modifications Following Inspection.

(a) When corrective modifications to achieve compliance are required:

(1) the department shall provide the owner a list of required corrective modification(s);

(2) within 10 calendar days after receiving the list of required corrective modifications, the owner shall complete all corrective modifications and provide [written] verification, in a manner prescribed by the department, of the corrective modifications, within 30 days of completion [to the department]; and

(3) the department may grant an extension of time, consistent with established procedures, if satisfactory evidence is presented showing that the time period specified is inadequate to perform the necessary corrections.

(b) (No change.)

§82.70.Responsibilities of Individuals.

(a) - (f) (No change.)

(g) Licensees shall maintain a current mailing address on file with the department and must notify the department within [not later than] thirty days following any change of mailingaddress.

(h) (No change.)

§82.71.Responsibilities of Barbershops, Specialty Shops, Dual Shops, Mini-Barbershops, and Mini-Dual Shops.

(a) - (o) (No change.)

(p) Shops shall maintain a current mailing address on file with the department and must notify the department within [not later than] thirty days following any change of mailingaddress.

(q) - (t) (No change.)

(u) Mini-dual shops must:

(1) comply with all requirements of the Act and this chapter applicable to barbershops; and

(2) comply with all requirements of Texas Occupations Code, Chapter 1602, and 16 TAC Chapter 83 applicable to beauty shops; and

(3) comply with all the requirements for dual shops listed under subsection (s) [(t)].

(v) A person holding a barber shop, mini-barbershop, specialty shop, dual shop, mini-dual shop, or mobile shop license may [not] employ a person who is not otherwise licensed by the department to shampoo or condition a person's hair[, unless the person holds an active student permit].

§82.72.Responsibilities of Barber Schools.

(a) - (b) (No change.)

(c) A barber school must have an appropriate number of chairs for the number of students enrolled. [one barber chair available for each student in attendance on the practical floor. Additional students in attendance must be assigned to the beginner's department or theory classroom.]

(d) - (k) (No change.)

[(l) Notwithstanding subsection (j), a student may shampoo and condition a person's hair in a facility licensed under Texas Occupations Code, Chapters 1601 and 1603.]

(l) [(m)] A barber school shall maintain one album displaying the school's portion of student permits, including affixed picture, of all enrolled students. The permits shall be in alphabetical order. No student may accrue hours for practical work or theory unless the student's permit is displayed in accordance with this subsection.

(m) [(n)] Each barber school approved by the department shall include in its instruction the curricula approved by the department.

(n) [(o)] No business other than the teaching and practicing of barbering can be operated on the premises of a barber school, with the exception of vending machines or retail products directly relating to hair care.

(o) [(p)] A barber school offering distance education must:

(1) obtain department approval before offering a course;

(2) provide students with the educational materials necessary to fulfill course requirements; and

(3) comply with the curriculum requirements set forth in §82.120 by limiting distance education to the maximum number of theory hours designated for each course type.

(p) [(q)] Only a permitted barber school, barbershop, mini-barbershop, dual shop, mini-dual shop, mobile shop, or manicurist specialty shop or a licensed barber may advertise as a "Barber."

(q) [(r)] Schools may establish rules of operation and conduct, which may include rules relating to student clothing, that do not conflict with this chapter.

(r) [(s)] A student enrolled in a barber school must wear a clean uniform or smock during school hours.

(s) [(t)] Barber schools are responsible for compliance with the health and safety standards of this chapter.

(t) [(u)] Alterations to the school's floor plan must be in compliance with the requirements of the Act and this chapter.

(u) [(v)] Barber schools shall notify the department in writing of any name change of the school within thirty days of the change.

(v) [(w)] Barber schools shall maintain a current mailing address on file with the department and must notify the department not later than thirty days following any change of mailing address.

(w) [(x)] At least one time per month, barber schools shall submit to the department an electronic record of each student's accrued hours, in a manner and format prescribed by the department. Delayed data submission(s) are permitted only upon department approval, and the department shall determine the period of time for which a school may delay the electronic submission of data on a case by case basis. Upon department approval, a school may submit data required under this subsection in an alternate manner and format as determined by the department, if the school demonstrates that the requirements of this subsection would cause a substantial hardship to the school.

(x) Schools changing from clock hours to credit hours or credit hours to clock hours must apply with the department for approval, on a department approved form, prior to making any changes. Successful completion of 1 credit hour is equal to 37.5 clock hours. This equivalency will be used for conversion between clock hours to credit hour or credit hour to clock hours and the department must periodically assess this equivalency conversion to ensure it is an acceptable industry standard.

(y) - (dd) (No change.)

§82.78.Responsibilities of Mobile Shops.

(a) (No change.)

(b) A mobile shop license holder shall maintain a permanent physical address as required by §82.22(g) [(e)]. The mobile shop shall notify the department in writing of any change in physical or mailing address within 10 calendar days of the change.

(c) (No change.)

(d) A mobile shop shall either:

(1) (No change.)

(2) submit to the department, in a manner specified by the department, a weekly itinerary showing the dates, exact locations, and times of service to be provided. The license holder shall submit the itinerary not less than 7 calendar days prior to the beginning of service described in the itinerary and shall submit to the department any changes in the itinerary not less than 24 hours prior to the change. A mobile shop shall follow the itinerary in providing service and notify the department of any changes.

(e) - (l) (No change.)

§82.80.Fees.

(a) (No change.)

(b) Renewal Fees:

(1) - (3) (No change.)

[(4) Student Permit--No fee]

(4) [(5)] Specialty Certificate of Registration--Hair Weaving--$30

(5) [(6)] Specialty Instructor License--Barber Technician, Manicurist, Barber Technician/Manicurist, Barber Technician/Hair Weaving, Hair Weaving--$65

(6) [(7)] Barbershop Permit--$60

(7) [(8)] Mini-Barbershop Permit--$60

(8) [(9)] Specialty Shop Permit--$50

(9) [(10)] Booth Rental Permit--No fee

(10) [(11)] School Permit--$200

(11) [(12)] Dual Shop--$100

(12) [(13)] Mini-Dual Shop Permit--$60

(13) [(14)] Mobile Shop--$60

(c) - (g) (No change.)

(h) Initial Inspection or Re-inspection of school [Inspection] Fees (for each occurrence)--$200 [:]

[(1) Initial Inspection or Re-inspection of school--$200]

[(2) Risk-based Inspection Fees for schools and shops--$150]

(i) - (j) (No change.)

§82.102.Health and Safety Standards--General Requirements.

(a) All licensees shall clean their hands with soap and water or use a hand sanitizer prior to performing any services and as necessary during the services to ensure a client health and safety. All barber establishments and licensees shall utilize clean and disinfected equipment, tools, implements, and supplies in accordance with this Chapter, and shall employ good hygiene habits while providing barbering services.

(b) - (f) (No change.)

(g) A container, large enough to fully immerse all tools and implements with [of] liquid disinfectant shall be [located at each barber chair or station in a barber establishment to be] used to disinfect combs, brushes, scissors or other equipment which may be safely immersed in a liquid disinfectant.

(h) - (o) (No change.)

§82.108.Health and Safety Standards--Footspas.

(a) - (d) (No change.)

(e) A record shall be made on a form prescribed [prescribe] by the Department of the date and time of each cleaning and disinfecting indicating whether the cleaning was a daily or bi-weekly cleaning. This record shall be made at or near the time of cleaning and disinfecting. The record shall indicate if a spa was not used at all during any individual work day. Cleaning and disinfecting records shall be made available upon request by either a patron or a Department representative.

(f) - (g) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703791

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


16 TAC §82.53

The repeal is proposed under Texas Occupations Code, Chapters 51, 1601 and 1603, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 1601 and 1603. No other statutes, articles, or codes are affected by the proposal.

§82.53. Risk-Based Inspections.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703790

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


CHAPTER 83. COSMETOLOGISTS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 83, §§83.10, 83.22 - 83.25, 83.29, 83.31, 83.40, 83.50 - 83.52, 83.54, 83.70 - 83.73, 83.78, 83.80, 83.102 and 83.105; and proposes the repeal of current §83.53, regarding the Cosmetologists program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The Texas Legislature enacted Senate Bill 1503, Senate Bill 2065, House Bill 2738, House Bill 2739, 85th Legislature, Regular Session (2017). The proposed amendments and repeal include removing the requirement for a shampoo apprentice permit or shampoo specialty certificate; eliminating risk-based inspections; clarifying the definition of barbering to exclude threading; authorizing licensed schools to account for hours on the basis of clock or credit; allowing standards to be established for equivalency and conversion of clock to credit hours and vice versa; removing square footage, chair, and sink requirements for barber schools; and distinguishing between larger and specialty school requirements. The proposed amendments and repeal are necessary to implement the legislative changes.

The proposed amendments to §83.10 corrects references, removes outdated language, and adds "specialty shop" to be consistent with statutory language.

The proposed amendments to §83.22 removes redundant language for clarity.

The proposed amendments to §83.23 removes specific requirements for beauty culture schools.

The proposed amendments to §83.24 removes language regarding inactive license status to reflect current practice.

The proposed amendments to §83.25 corrects a reference and adds human trafficking to continuing education requirements.

The proposed amendments to §83.29 clarifies the current requirements for establishment relocation and change of ownership.

The proposed amendments to §83.31 removes shampoo specialty certificates.

The proposed amendments to §83.40 reduces the maximum amount per claim per student to assist more students in the event of a school closure.

The proposed amendments to §83.50 removes a reference to risk-based inspections.

The proposed amendments to §83.51 updates language to be consistent with statutory language.

The proposed amendments to §83.52 removes risk-based inspections from periodic inspections.

The proposed repeal of §83.53 removes risk-based inspections and classifications.

The proposed amendments to §83.54 allows individuals a full ten days to complete the necessary modification after an inspection.

The proposed amendments to §83.70 updates language to be consistent throughout chapter.

The proposed amendments to §83.71 removes shampoo permit requirements, adds facility license posting requirements, and updates language for consistency.

The proposed amendments to §83.72 requires human trafficking information to be posted, removes outdated language, and establishes equivalency and conversion standards between credit and clock hours.

The proposed amendments to §83.73 removes the shampoo apprentice permits and shampoo specialty certificates.

The proposed amendments to §83.78 updates language for clarity.

The proposed amendments to §83.80 removes fees relating to shampoo certificates and risk-based inspections and renumbers the section accordingly.

The proposed amendments to §83.102 streamlines language for clarity and quick reference.

The proposed amendments to §83.105 removes threading language for clarity.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for the first five-year period the proposed rules are in effect, there may be additional estimated costs to the State as a result of enforcing or administering the rules. The rules remove specific square footage and equipment requirements for beauty culture schools. Removing these requirements could increase the number of applications, licenses, and inspections for beauty culture schools. However, at this time, the Department is unable to estimate the amount or increase in beauty culture schools as a result of these rules. For the first five-year period the proposed rules will not result in any estimated reductions in costs to the State.

For each year of the first five-years the rules will be in effect, there will be an estimated loss in revenue to the State due to the deregulation of shampoo apprentice permits and shampoo specialty certificates. The licensing population was very small and would result in an approximate loss of $2,700. Additionally, there may be an increase in revenue to the State as a result of enforcing or administering the rule due to the removal of specific square footage and equipment requirements for beauty culture schools. Removing these requirements could increase the number of application and inspection fees paid for beauty culture schools. However, at this time, the Department is unable to estimate the amount or increase in beauty culture schools as a result of these rules.

Mr. Francis has also determined that for each year of the first five-year period the proposed rules are in effect there will be no additional estimated costs or estimated reductions in costs to local government as a result of enforcing or administering the proposed rules. Furthermore, there will be no estimated loss or increase in revenue to local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit by the removal of square footage and equipment requirements. This proposed rule change will allow more individuals, particularly in rural areas, to operate beauty culture schools and would potentially lower costs for purchasing space or equipment. The proposed rules lower the maximum reimbursement amount per student from the Private Beauty Culture School Tuition Protection Account, which will allow for more students to be reimbursed in the event of school closures. The proposed rules implement human trafficking awareness initiatives by training thousands of licensees on the issue of human trafficking, how to identify key indicators, and how to report suspicions. The posting of human trafficking information in establishments will provide the public with more awareness and potentially help report and prevent human trafficking. Additionally, the proposed rules will now provide facility owners a full ten days to complete corrective modifications and additional time to notify the Department of those modifications. The proposed rules also provide schools with additional guidance for operating on clock or credit hours.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there may be an increase cost to the continuing education providers by possibly requiring them to redevelop curricula to incorporate human trafficking information. At this time, there is no way to estimate their possible development costs, if any. However, providers will have the ability to use already developed and available human trafficking information to satisfy this requirements with no additional cost.

FISCAL IMPACT ON SMALL BUSINESSES AND MICRO-BUSINESSES

Mr. Francis has determined that the proposed rules could possibly have an adverse effect on small businesses or micro-businesses by requiring continuing education providers to redevelop curriculums to incorporated human trafficking information.

Economic Impact Statement

There are approximately 202 continuing education providers who will have to comply with the rule requiring information on human trafficking to be included in their continuing education courses. Some providers could choose to develop their own method to deliver information on human trafficking in their continuing education course hours. Others may choose to utilize instruction and videos which have already been developed and may be used at no additional cost. There is no requirement regarding how long the information on human trafficking must be. Given the lack of information of how each provider will incorporate the required human trafficking information into their course hours, and how much information will be delivered and how lengthy it will actually be, the economic impact on small and micro-businesses cannot be estimated. Again, providers will have the ability to use already developed and available human trafficking information to satisfy this requirements with no additional cost.

Regulatory Flexibility Analysis

There are no alternative methods of achieving the purpose of the proposed rule because by law continuing education providers must include information on human trafficking in their continuing education course hours.

ADVERSE ECONOMIC EFFECT ON RURAL COMMUNITIES

There will be no adverse effect on rural communities as a result of the proposed rules.

Since the agency has determined that the proposed rules will have no adverse economic effect on rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed rules do not have a fiscal note that imposes a direct cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

Cost to continuing education providers, if any, for implementing the proposed rules regarding the new human trafficking requirements fall under exceptions §2001.0045(c)(6) and (9). These rules are necessary to protect health, safety, and welfare of the residents of this state from human trafficking and necessary to implement the requirements of House Bill 2552, 85th Legislature, Regular Session (2017).

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, General Counsel's Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

16 TAC §§83.10, 83.22 - 83.25, 83.29, 83.31, 83.40, 83.50 - 83.52, 83.54, 83.70 - 83.73, 83.78, 83.80, 83.102, 83.105

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapters 51, 1602 and 1603, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 1602 and 1603. No other statutes, articles, or codes are affected by the proposal.

§83.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (11) (No change.)

(12) Eyelash Extension Specialist--A person who holds a specialty license and who is authorized to practice the service defined in Texas Occupations Code §1602.002(a)(10) [§1602.002(a)(11)].

(13) Esthetician--A person who holds a specialty license and who is authorized to practice the services defined in Texas Occupations Code §1602.002(a)(4) - (7), and (10) [§1602.002(a)(5) - (8) and (11)]. The term esthetician in this chapter includes the term facialist.

(14) Esthetician/Manicurist--An esthetician/manicurist may perform only those services defined in Texas Occupations Code §1602.002(a)(4) - (9) [§1602.002(a)(5) - (11)].

(15) (No change.)

(16) Hair weaver--A person who holds a hair weaving specialty certificate and who may perform only the practice of cosmetology defined in Texas Occupations Code §1602.002(a)(11) [§1602.002(a)(2) and (12)].

(17) - (20) (No change.)

(21) Manicurist--A manicurist may perform only those services defined in Texas Occupations Code §1602.002(a)(8) and (9) [§1602.002(a)(9) and (10)].

(22) - (31) (No change.)

(32) Specialty Instructor--An individual authorized by the department to perform or offer instruction in an act or practice of cosmetology limited to Texas Occupations Code, §1602.002(a)(5), (7), (8), and (10) [§1602.002(a)(5) - (10) and/or (11)].

(33) Specialty Salon or Specialty Shop--A cosmetology establishment in which only the practice of cosmetology as defined in Texas Occupations Code, §1602.002(a)(2), (5), (7), (8), or (10) [§1602.002(a)(3) or (5) - (12)] is performed. Specialty salons may only perform the act or practice of cosmetology in which the salon is licensed.

(34) Student Permit--A permit issued by the department to a student enrolled in cosmetology school which states the student's name and the name of the school. [A person holding an active student permit may shampoo and condition a person's hair in a facility licensed under Texas Occupations Code, Chapters 1602 and 1603.]

(35) Tweezing Technique--Any type of temporary hair removal procedure involving the extraction of hair from the hair follicle by use of, but not limited to, an instrument, appliance or implement made of metal, plastic, [thread] or other material.

(36) - (37) (No change.)

(38) Wig Specialist--A person who holds a wig specialty certificate and who may perform only the practice of cosmetology defined in Texas Occupations Code §1602.002(a)(2) [§1602.002(a)(3)].

§83.22.License Requirements--Beauty Salons, Specialty Salons, Mini-Salons, Dual Shops, Mini-Dual Shops, Mobile Shops, and Booth Rentals (Independent Contractors).

(a) To be eligible for a beauty salon, specialty salon, dual shop, mobile shop, mini-salon, mini-dual shop, or booth rental license, an applicant must:

(1) obtain the current law and rules book;

(2) comply with the requirements of the Act and this chapter;

(3) submit a completed application on a department-approved form; and

(4) pay the fee required under §83.80.

[(b) To be eligible for a mini-salon or mini-dual shop license an applicant must:]

[(1) obtain the current law and rules book;]

[(2) comply with the requirements of the Act and this chapter;]

[(3) submit a completed application on a department-approved form; and]

[(4) pay the fee required under §83.80.]

(b) [(c)] In addition to the requirements of subsection (a), an applicant for a dual shop or mini-dual shop must also comply with Texas Occupations Code, Chapters 1601, 1602, and 1603 and 16 TAC Chapters 82 and 83 for obtaining a beauty salon license and a barbershop permit.

[(d) In addition to the requirements of subsection (b), an applicant for a mini-dual shop must also comply with Texas Occupations Code, Chapters 1601, 1602, and 1603 and 16 TAC Chapters 82 and 83 for obtaining a beauty salon license and a barbershop permit.]

(c) [(e)] In addition to the requirements of subsection (a), a mobile shop license applicant must:

(1) provide a permanent physical address from which the mobile unit is dispatched and to which the mobile unit is returned when not in use;

(2) provide a permanent mailing address where correspondence from the department may be received; and

(3) verify that the mobile shop complies with the requirements of the Act and this chapter.

§83.23.License Requirements--Beauty Culture Schools.

(a) To be eligible for a beauty culture school license, an applicant must:

(1) - (2) (No change.)

(3) submit a completed application on a department-approved form; and

(4) - (5) (No change.)

(b) (No change.)

(c) Private beauty culture schools offering instruction for persons seeking a license or certificate must have and maintain the following:

(1) a building of permanent construction that must include two separate areas, one area for instruction in theory and one area for clinic work, and that must also include access to permanent restrooms and adequate drinking fountain facilities;

[(2) In counties with populations of 100,000 or less, the building must have a minimum of 1,800 square feet of floor space. In counties with populations of more than 100,000, the building must have a minimum of 2,800 square feet of floor space. Population shall be determined according to the current decennial data compiled by the United States Census Bureau.]

(2) [(3)] adequate space, equipment, and instructional materials to provide quality classroom training to the number of students enrolled [established by the department sufficient to instruct a minimum of 10 students];

(3) [(4)] proof of ownership of building or proof of a lease for the first 12 months of operation; and

(4) [(5)] a copy of the curriculum approved by the department for each course offered.

(d) Public beauty culture schools must have and maintain the following:

(1) Adequate space to provide quality classroom training for the number of students enrolled including an [not less than 2,200 square feet that includes] office, dispensary, [locker room,] classroom and laboratory space;

(2) adequate equipment and instructional materials required by the department; and

(3) a copy of the curriculum approved by the department for each course offered.

(e) A beauty culture schools offering instruction for persons seeking a license or certificate must comply with all health and safety standards established by this chapter.

§83.24.Inactive Status.

(a) To change a license to inactive status, an applicant must submit a completed application on a department-approved form.[:]

[(1) submit a completed application on a department-approved form; and]

[(2) pay the fee required under §83.80].

(b) - (d) (No change.)

§83.25.License Requirements--Continuing Education.

(a) - (b) (No change.)

(c) Continuing education hours required under §83.25(b)(2) must include information on human trafficking as required by Texas Occupations Code Chapter 1602, §1602.354(c) and at a minimum must include information on:

(1) activities commonly associated with human trafficking;

(2) recognition of potential victims of human trafficking; and

(3) methods for assisting victims of human trafficking, including how to report human trafficking.

(d) [(c)] To renew an instructor license, or an esthetician instructor, manicure instructor, esthetician/manicure instructor or eyelash extension instructor specialty license, a licensee must complete a total of 4 hours of continuing education through department-approved courses. The continuing education hours must include the following [in the following manner]:

(1) 1 hour in Sanitation required under the Act and this chapter; and

(2) 3 hours in methods of teaching in accordance with §83.120.[; or]

(e) Continuing education hours required under §83.25(c)(2) must include information on human trafficking as required by Texas Occupations Code Chapter 1602, §1602.354(c) and at a minimum must include information on:

(1) activities commonly associated with human trafficking;

(2) recognition of potential victims of human trafficking; and

(3) methods for assisting victims of human trafficking, including how to report human trafficking.

(f) [(d)] For a timely or a late renewal, a licensee must complete the required continuing education hours within the two-year [two year] period immediately preceding the renewal date.

(g) [(e)] A licensee may receive continuing education hours in accordance with the following:

(1) A licensee may not receive continuing education hours for attending the same course more than once.

(2) A licensee will receive continuing education hours for only those courses that are registered with the department, under procedures prescribed by the department.

(h) [(f)] A licensee shall retain a copy of the certificate of completion for a course for two years after the date of completion. In conducting any inspection or investigation of the licensee, the department may examine the licensee's records to determine compliance with this subsection.

(i) [(g)] To be approved under Chapter 59 of this title, a provider's course must be dedicated to instruction in one or more of the following topics:

(1) Sanitation required under the Act and this chapter;

(2) the Act and this chapter, addressing topics other than Sanitation;

(3) the curriculum subjects listed in §83.120.

(j) [(h)] A registered course may be offered until the expiration of the course registration or until the provider ceases to hold an active provider registration, whichever occurs first.

(k) [(i)] A provider shall pay to the department a continuing education record fee of $5 for each licensee who completes a course for continuing education credit. A provider's failure to pay the record fee for courses completed may result in disciplinary action against the provider, up to and including revocation of the provider's registration under Chapter 59 of this title.

(l) [(j)] Notwithstanding subsections (b) and (c) a licensee may satisfy the continuing education requirement for renewal by completing one hour of Sanitation in department-approved courses, if the licensee:

(1) is at least 65 years of age; and

(2) has held a cosmetology license for at least 15 years.

§83.29.Establishment Relocation, Change of Ownership, Owner Death or Incompetency.

(a) - (b) (No change.)

(c) If an establishment changes ownership, the new owner must apply for a new establishment license within 30 days after the change of ownership. Additionally, a beauty culture school must be inspected but may continue to operate pending the department's inspection. A change of ownership includes the following:

(1) For a sole proprietorship, the licensee no longer owns [and/or operates] the establishment.

(2) For a partnership or limited partnership, the partnership is dissolved.

(3) For a corporation or limited liability company, if [the corporation is] sold to another person or entity. A change of ownership does not include corporate officer or stockholder restructuring.

(4) Legal incompetence or death.

§83.31.Licenses--License Terms.

(a) The following licenses have a term of two (2) years:

(1) - (2) (No change.)

(3) specialty certificate--hair weaving, wig[, shampoo/conditioning];

(4) - (11) (No change.)

(b) - (c) (No change.)

§83.40.Private Beauty Culture School Tuition Protection Account.

(a) - (e) (No change.)

(f) In the event a student from a closed school cannot be placed or does not accept a place in another school, a refund, calculated under the closed school's refund policy, may be paid from the Private Beauty Culture School Tuition Protection Account and the total payment of a claim may not exceed $10,000 [$35,000]. The total amount of claims paid against a single closed school may not exceed $100,000.

(g) - (k) (No change.)

§83.50.Inspections--General.

(a) Cosmetology establishments shall be inspected periodically[, according to a risk-based schedule,] or as a result of a complaint. These inspections will be performed to determine compliance with the requirements of the Act and this chapter, particularly those requirements relating to public safety, licensing, and sanitation. In addition, the department will make information available to cosmetology establishment owners and managers on best practices for risk-reduction techniques.

(b) - (d) (No change.)

§83.51.Initial Inspections--Inspection of Beauty Culture Schools Before Operation.

(a) - (e) (No change.)

(f) A beauty culture school that does not meet the minimum requirements on initial inspection may [must] be reinspected. The beauty culture school owner must submit the request for reinspection along with the fee required by §83.80, before the department will perform the reinspection.

§83.52.Periodic Inspections.

(a) - (d) (No change.)

(e) Based on the results of the periodic inspection, a cosmetology establishment found out of compliance may be re-inspected. [moved to a risk-based schedule of inspections. The department will notify the owner of a cosmetology establishment, in writing, if the establishment becomes subject to the risk-based inspection schedule and the scheduled frequency of inspection.]

§83.54.Corrective Modifications Following Inspection.

(a) When corrective modifications to achieve compliance are required:

(1) the department shall provide the owner a list of required corrective modification(s);

(2) within 10 days after receiving the list of required corrective modifications, the owner shall complete all corrective modifications and provide [written] verification, in a manner prescribed by the department, of the corrective modifications, within thirty (30) days of completion [to the department]; and

(3) (No change.)

(b) (No change.)

§83.70.Responsibilities of Individuals.

(a) - (d) (No change.)

(e) All current licenses [Individual licenses and booth rental (independent contractor) licenses] may be posted at the licensee's work station in the public view or be made available in a notebook at the salon reception desk.

(f) (No change.)

(g) Licensees shall notify the department in writing of any name change within thirty (30) [30] days of the change.

(h) Licensees must notify the department within [not later than] thirty (30) days following any change of address. The department may send all notices on other information required by applicable laws and rules to any licensee's last known mailing address on file with the department.

(i) - (j) (No change.)

§83.71.Responsibilities of Beauty Salons, Mini-Salons, Specialty Salons, Dual Shops, Mini-Dual Shops and Booth Rentals.

(a) - (f) (No change.)

[(g) A person holding a beauty, specialty or mini-salon license or a dual or mini-dual shop permit, may not employ a person who is not otherwise licensed by the department to shampoo or condition a person's hair, unless the person holds a student permit.]

(g) [(h)] Each salon shall comply with the following requirements:

(1) a sink with hot and cold running water;

(2) an identifiable sign with the salon's name;

(3) a suitable receptacle for used towels/linen;

(4) a [one] wet disinfectant soaking container, large enough to fully immerse tools and implements;

(5) a clean, dry, debris-free storage area;

(6) a minimum of one covered trash container; and

(7) if providing manicure or pedicure nail services, an autoclave, dry heat sterilizer or ultraviolet sanitizer.

(h) [(i)] In addition to the requirements of subsection (g) [(h)]:

(1) beauty salons and mini-salons shall provide the following equipment for each licensee present and providing services:

(A) one working station;

(B) one styling chair; and

(C) a sufficient amount of shampoo bowls.

(2) manicure salons shall provide the following equipment for each licensee present and providing services:

(A) one manicure table with light;

(B) one manicure stool; and

(C) one professional client chair for each manicure station.

(3) esthetician salons shall provide the following equipment for each licensee present and providing services:

(A) one facial bed or chair; and

(B) one mirror.

(4) combination esthetician/manicure salons shall provide the following equipment:

(A) the requirements for manicure salon; and

(B) the requirements for esthetician salon.

(5) eyelash extension salons shall provide the following equipment for each licensee present and providing services:

(A) one facial bed or massage table that allows the consumer to lie completely flat;

(B) one lamp; and

(C) one stool or chair.

(6) wig salons shall provide the following equipment for each licensee present and providing services:

(A) one mannequin table, station, or styling bar to accommodate a minimum of 10 hairpieces;

(B) one wig dryer; and

(C) two canvas wig blocks.

(7) hair weaving salons shall provide the following equipment for each licensee present and providing services:

(A) one work station;

(B) one styling chair; and

(C) a sufficient amount of shampoo bowls for licensees providing hair weaving services.

(8) Dual shops shall:

(A) comply with all requirements of the Act and this chapter applicable to beauty salons;

(B) comply with all requirements of Texas Occupations Code, Chapter 1601, and Chapter 82 of this title applicable to barbershops;

(C) if the shop does not currently have employed or have a contract with at least one licensed barber or one licensed cosmetologist, the owner must immediately display a prominent sign at the entrance and exit of the shop indicating that no barber or no cosmetologist is available; and

(D) if the shop has neither employed nor contracted with at least one licensed barber or cosmetologist for a period of 45 days or more the owner shall:

(i) not place any new advertisement or display any sign or symbol indicating that the shop offers barbering or cosmetology services; and

(ii) remove or obscure any existing sign or symbol indicating that the shop offers barbering or cosmetology services.

(9) Mini-dual shops shall:

(A) comply with all requirements of the Act and this chapter applicable to beauty salons; and

(B) comply with all requirements of Texas Occupations Code, Chapter 1601, and 16 TAC Chapter 82 applicable to barbershops.

(i) [(j)] All booth rental licensees acting as independent contractors must have the following items:

(1) a [one] wet disinfectant soaking container, large enough to fully immerse tools and implements;

(2) a clean, dry, debris-free storage area;

(3) a suitable receptacle for used towels/linen; and

(4) a current law and rules book.

(j) [(k)] In addition to the requirements in subsection (i) [(j)], booth rental licensees acting as independent contractors must have the following items.

(1) If practicing in a beauty salon, one work station and one styling chair.

(2) If practicing in an esthetician salon, one facial bed or chair and one mirror, wall hung or hand held.

(3) If practicing in a manicure salon, one manicure table with a light, one manicure stool, and one chair, professional in appearance.

(4) If practicing in an eyelash extension salon, one facial bed or massage table that allows the consumer to lie completely flat, one stool or chair and one lamp.

(k) [(l)] Booth rental licensees acting as independent contractors must comply with all state and federal laws relating to independent contractors.

(l) [(m)] Cosmetology establishments shall display in the establishment, in a conspicuous place clearly visible to the public, a copy of the establishment's most recent inspection report issued by the department.

(m) All licensed facilities must display in a conspicuous place clearly visible to the public a sign, acceptable to the department, regarding human trafficking information as required by Texas Occupations Code, Chapter 1602, Section 1602.408.

§83.72.Responsibilities of Beauty Culture Schools.

(a) - (b) (No change.)

(c) Notify the department of any [Any] alterations of a cosmetology establishment's floor plan. [must be done in accordance with this chapter and the Act.]

(d) The approved curricula shall be posted in a conspicuous place in the school. A current syllabus and lesson plan for each course shall be maintained by the school and be available for inspection.

(e) - (n) (No change.)

(o) Schools changing from clock hours to credit hours or from credit hours to clock hours must apply with the department for approval, on a department approved form, prior to making any changes. [shall submit to the department their curriculum for approval before making the change.]

(p) Successful completion of 1 credit hour is equal to 37.5 clock hours. This equivalency will be used for conversion between clock hours to credit hours or credit hours to clock hours and the department must periodically assess this equivalency conversion to ensure it is an acceptable industry standard.

(q) [(p)] Except for a documented leave of absence, schools shall electronically submit a student's withdrawal or termination to the department within 10 calendar days after the withdrawal or termination. Except for a documented leave of absence, a school shall terminate a student who does not attend a cosmetology curriculum for 30 days.

(r) [(q)] Public schools shall electronically submit a student's accrual of 500 hours in math, lab science, and English.

(s) [(r)] All areas of a school or campus are acceptable as instructional areas for a public cosmetology school, provided that the instructor is teaching cosmetology curricula required under §83.120.

(t) [(s)] A private cosmetology school or post-secondary school may provide cosmetology instruction to public high school students by contracting with the school district and complying with Texas Education Agency law and rules. A public high school student receiving instruction under such contract is considered to be a public high school student enrolled in a public school cosmetology program for purposes of the Act and department rules.

(u) [(t)] Schools may establish school rules of operation and conduct, including rules relating to absences and clothing, that do not conflict with this chapter.

(v) [(u)] Schools must ensure that guest presenters possess the necessary knowledge and teaching ability to present a curriculum topic and that a licensed instructor is present during the guest presenter's classroom teaching.

(w) [(v)] Beauty culture schools must have a classroom separated from the laboratory area by walls extending to the ceiling and equipped with the following equipment to properly instruct [a minimum of ten] students enrolled at the school:

(1) - (6) (No change.)

(7) [2] covered trash cans in lab area; and

(8) [one large] wet disinfectant soaking container, large enough to fully immerse tools and implements.

(9) If offering the operator curriculum the following equipment must be available in adequate number for student use:

(A) shampoo bowl and shampoo chair;

(B) heat processor, [or] hand-held hair dryer, [and] heat cap, or therapeutic light;

(C) - (L) (No change.)

(M) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(10) If offering the esthetician curriculum the following equipment must be available in adequate number for student use:

(A) - (L) (No change.)

(M) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(11) If offering the manicure curriculum the following equipment must be available in adequate number for student use:

(A) - (I) (No change.)

(J) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(12) - (13) (No change.)

(x) [(w)] Cosmetology schools [establishments] shall display in the school [establishment ], in a conspicuous place clearly visible to the public:[,]

(1) a copy of the school's [establishment's ] most recent inspection report issued by the department; and

(2) a sign, acceptable to the department, regarding human trafficking information as required by Texas Occupations Code, Chapter 1602, §1602.408.

§83.73.Responsibilities of Students.

(a) - (b) (No change.)

[(c) A person holding an active student permit may shampoo and condition a person's hair in a facility licensed under Texas Occupations Code, Chapters 1602 and 1603.]

§83.78.Responsibilities of Mobile Shops.

(a) - (c) (No change.)

(d) A mobile shop shall either:

(1) (No change.)

(2) submit to the department, in a manner specified by the department, a weekly itinerary showing the dates, exact locations, and times of service to be provided. The license holder shall submit the itinerary not less than 7 calendar days prior to the beginning of service described in the itinerary and shall submit to the department any changes in the itinerary not less than 24 hours prior to the change. A mobile shop shall follow the itinerary in providing service and notify the department of any changes.

(e) - (l) (No change.)

§83.80.Fees.

(a) (No change.)

(b) Renewal fees.

(1) - (2) (No change.)

(3) Specialty Certificate--Hair Weaving, Wig[, Shampoo/Conditioning]--$50

(4) - (12) (No change.)

(c) (No change.)

(d) Inactive License Status

[(1) Change from active status to inactive status--no charge.]

(1) [(2)] Renewal of license on inactive status--renewal fees as stated in §83.80(b).

(2) [(3)] Change from inactive status to active status--$25.

(e) - (f) (No change.)

(g) School (public and private) Inspection Fees (for each occurrence)--$200

[(1) School (public and private)--$200]

[(2) Risk-based Inspection of establishments--$150]

(h) - (l) (No change.)

§83.102.Health and Safety Standards--General Requirements.

(a) All licensees shall clean their hands with soap and water or use a hand sanitizer prior to performing any services and as necessary during the service to ensure a client health and safety. All cosmetology establishments and licensees shall utilize clean and disinfected equipment, tools, implements, and supplies in accordance with this chapter, and shall employ good hygiene habits while providing cosmetology services.

(b) - (n) (No change.)

§83.105.Health and Safety Standards--Temporary Hair Removal Services.

(a) - (d) (No change.)

[(e) Thread shall be stored in a sealed bag or covered container until ready to use and shall be kept in a clean, dry, debris-free storage area.]

(e) [(f)] All multi-use items shall be properly cleaned, disinfected and sterilized or sanitized prior to each service, in accordance with this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703793

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


16 TAC §83.53

The repeal is proposed under Texas Occupations Code, Chapters 51, 1602 and 1603, which authorize the Commission, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, 1602 and 1603. No other statutes, articles, or codes are affected by the proposal.

§83.53.Risk-Based Inspections.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703792

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 463-8179


PART 8. TEXAS RACING COMMISSION

CHAPTER 309. RACETRACK LICENSES AND OPERATIONS

SUBCHAPTER A. RACETRACK LICENSES

DIVISION 1. GENERAL PROVISIONS

16 TAC §309.8

The Texas Racing Commission proposes an amendment to 16 TAC §309.8, Racetrack License Fees. The section relates to the purpose and amounts of annual fees charged to the racetracks. The amendment increases the amount of annual fees charged to Class 1 horse racetracks and decreases the amount of fees charged to each of the other classes of racetracks. The amendment adjusts the schedule of payments so that all racetracks pay the annual fees in monthly installments rather than calling for non-operating tracks to pay on a quarterly basis. The amendment decreases the base number of race dates that may be conducted for the annual fee and increases the charge for each additional race date beyond the base to $6,313. Finally, the amendment removes the provision permitting the executive director to recommend a supplemental fee when the total revenue from annual fees is insufficient to pay the Commission's costs.

Chuck Trout, Executive Director, has determined that for the first five-year period the rule is in effect there will be positive fiscal implications for local and state government as a result of enforcing the amended rule. Five of the ten racetrack licensees are currently refusing to pay their annual fees and are thereby placing the Texas Racing Commission at risk of becoming insolvent. Without the racetracks' payment of annual fees, the Commission will be unable to operate and there will be no legal racing with pari-mutuel wagering. However, the proposed fee schedule was proposed by nine of the ten racetracks and no racetrack has refused to comply with the proposed amendment. As a result, adoption of the rule will allow the Commission to operate and generate revenue for the state. Simulcasting in Texas generates approximately $2.9 million in general revenue for the State of Texas, and without the Commission's continued operations, that revenue will be lost. In addition, racetracks in Texas pay a variety of local taxes, including sales taxes, that will be lost without the Commission's continued operation.

Mr. Trout has determined that for each year of the first five years that the amended rule is in effect the anticipated public benefit will be not only the generation of revenue for state and local government as described above, but also the change will stabilize the agency's funding so that the Commission may continue regulating racing. Racing carries inherent risks to its participants, and the Commission mitigates those risks by, among other activities, conducting pre-race inspections of the race animals, detecting and preventing the use of prohibited drugs in race animals, and inspecting the facilities to ensure that they are safe for both the participants and the patrons.

For each year of the first five years that the amended rule is in effect the government growth impact is as follows: the amendment does not create or eliminate a government program; the amendment does not create any new employee positions or eliminate any existing employee positions; implementation of the rule does not require an increase or decrease in future legislative appropriations to the agency; implementation of the rule will increase the fees paid to the agency by the Class 1 racetracks and decrease the fees paid to the agency by the Class 2, Class 3, Class 4, and greyhound racetracks; the amendment does not create any new regulations; the amendment does not expand, limit, or repeal any existing regulations; the amendment does not increase or decrease the number of individuals subject to the rule's applicability; and the proposed rule positively affects this state's economy by enabling all of the economic activity associated with pari-mutuel racing in Texas to continue.

The amendment will have no adverse economic effect on small or micro-businesses, and therefore preparation of an economic impact statement and a regulatory flexibility analysis is not required. In fact, failure to adopt the amendment may have an adverse economic effect on these businesses since entities that rely on the continued existence of racing in Texas, such as racetrack tack rooms and backside veterinarians, will not be able to continue if pari-mutuel racing ends.

There are no negative impacts upon employment conditions in this state as a result of the proposed amendment. As described above, failure to adopt the amendment may have negative effects on employment conditions if racing ends and the businesses that rely on that racing also close as a result.

The amendment will have a positive effect on the state's agricultural, horse breeding, horse training, greyhound breeding, and greyhound training industry by providing the revenue the agency requires to continue operations. If the agency is forced to close due to insolvency, there will no longer be an incentive to engage in the agricultural, breeding and training efforts that are directly related to Texas racing.

All comments or questions regarding the proposed amendment may be submitted in writing within 30 days following publication of this notice in the Texas Register to Jean Cook, Assistant to the Executive Director for the Texas Racing Commission, at P.O. Box 12080, Austin, Texas 78711-2080, telephone (512) 833-6699, or fax (512) 833-6907.

The amendment is proposed under Texas Revised Civil Statutes Annotated, Article 179e, §5.01, which requires the Commission to set fees in amounts reasonable and necessary to cover the costs of regulating, overseeing, and licensing live and simulcast racing at racetracks, and under §6.18, authorizes the Commission to prescribe a reasonable annual fee to be paid by each racetrack licensee to pay the costs of administering and enforcing the Act.

The amendment implements Texas Revised Civil Statutes Annotated, Article 179e.

§309.8.Racetrack License Fees

(a) (No change.)

(b) Annual License Fee for State Fiscal Years Beginning September 1, 2017, and Thereafter.

[(1)] A licensed racing association shall pay an annual license fee. The annual license fee for each license type is as follows:

(1) [(A)] for a Class 1 racetrack, $700,000 [$500,000];

(2) [(B)] for a Class 2 racetrack, $125,000 [$230,000];

(3) [(C)] for a Class 3 or 4 racetrack, $35,000 [$70,000]; and

(4) [(D)] for a Greyhound racetrack, $200,000 [$360,000].

(c) Fee Payments for the State Fiscal Year Beginning September 1, 2017. Beginning on December 1, 2017, each association shall pay its annual license fee by remitting to the Commission 1/9th of the fee remaining due as of December 1, 2017, on the first business day of each month of state fiscal year 2018.

(d) Fee Payments for State Fiscal Years Beginning September 1, 2018, and thereafter.

[(2)] Each [An] association [that is conducting live racing or simulcasting] shall pay its annual license fee by remitting to the Commission 1/12th of the fee on the first business day of each month.

[(3) An association that is not conducting live racing or simulcasting shall pay its annual license fee in four equal installments on September 1, December 1, March 1, and June 1 of each fiscal year.]

(e) [(c)] Adjustment of Fees.

(1) Annual fees are calculated using a projected base of 68 [143] days of live horse racing and 36 [ 270] performances of live greyhound racing per calendar year. To cover the additional regulatory cost in the event additional days or performances are requested by the associations the executive secretary may:

(A) recalculate a horse racetrack's annual fee by adding $6,313 [$3,750] for each live day added beyond the base;

(B) recalculate a greyhound racetrack's annual fee by adding $750 for each live performance added beyond the base; and

(C) review the original or amended race date request submitted by each association to establish race date baselines for specific associations if needed.

[(2) If at any point the executive secretary determines the total revenue from the annual fees is insufficient to pay the Commission's costs during a fiscal year, the executive secretary shall recommend to the Commission a supplemental fee, in addition to the license fee, that each association would be required to pay to generate the necessary revenue to pay the Commission's costs.]

(2) [(3)] If the executive secretary determines that the total revenue from the annual fees exceeds the amount needed to pay those costs, the executive secretary may order a moratorium on all or part of the annual license fees remitted monthly by any or all of the associations. Before entering a moratorium order, the executive secretary shall develop a formula for providing the moratorium in an equitable manner among the associations. In developing the formula, the executive secretary shall consider the amount of excess revenue received by the Commission, the source of the revenue, the Commission's costs associated with regulating each association, the Commission's projected receipts for the next fiscal year, and the Commission's projected expenses during the next fiscal year.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 25, 2017.

TRD-201703801

Mark Fenner

General Counsel

Texas Racing Commission

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 833-6699


CHAPTER 311. OTHER LICENSES

SUBCHAPTER A. LICENSING PROVISIONS

DIVISION 1. OCCUPATIONAL LICENSES

16 TAC §311.5

The Texas Racing Commission proposes an amendment to 16 TAC §311.5, License Categories and Fees. The section relates to fees paid to obtain an occupational license. The amendment increases the license fee paid for each occupational license by 20 percent.

Chuck Trout, Executive Director, has determined that for the first five-year period the rule is in effect that there will be positive fiscal implications for state government as a result of enforcing the new rule. The increase in fees will generate additional revenue for the agency that is necessary for it to remain solvent and continue regulating pari-mutuel racing in Texas. There will be no fiscal implications for local government as a result of enforcing the new rule since the agency projects that the same number of licenses will be issued during each year, with the result that the same number of licensees will visit and generate local taxes by spending funds on local services and products.

Mr. Trout has determined that for each year of the first five years that the amended rule is in effect the anticipated public benefit will be to stabilize the agency's funding so that the Commission may continue regulating racing. Racing carries inherent risks to its participants, and the Commission mitigates those risks by, among other activities, conducting pre-race inspections of the race animals, detecting and preventing the use of prohibited drugs in race animals, and inspecting the facilities to ensure that they are safe for both the participants and the patrons.

For each year of the first five years that the amended rule is in effect the government growth impact is as follows: the amendment does not create or eliminate a government program; the amendment does not create any new employee positions or eliminate any existing employee positions; implementation of the rule does not require an increase or decrease in future legislative appropriations to the agency; implementation of the rule will require a 20 percent increase in fees paid to the agency by all occupational licensees; the amendment does not create any new regulations; the amendment does not expand, limit, or repeal any existing regulations; the amendment does not increase or decrease the number of individuals subject to the rule's applicability; and the proposed rule positively affects this state's economy by enabling all of the economic activity associated with pari-mutuel racing in Texas to continue.

The amendment will have no adverse economic effect on small or micro-businesses and therefore preparation of an economic impact statement and a regulatory flexibility analysis is not required. Although an increase of 20 percent on occupational license fees will cost some business people an additional $20 per year, the increase is de minimis in light of their overall income. Further, the increase will cause less hardship than would be caused by the agency's insolvency and the subsequent cessation of all pari-mutuel racing in Texas. Nevertheless, the Commission considered and rejected a number of alternatives to raising fees on licensees, including options to assess fees only on racetracks, to reduce costs by reducing race dates, to assess fees in varying levels on both racetracks and on occupational licensees, and to make additional cuts to administrative expenses. The Commission has already cut expenses by over $372,000 in fiscal years 2016-2017 and projects additional cuts of $261,000 in fiscal year 2018. These savings were achieved by eliminating some positions, not filling or combining positions when some employees left, reducing travel, reducing equipment and information technology expenses, and reducing hours. However, these reductions were insufficient to address the revenue shortfall caused by the loss of three racetrack licenses in 2016 and the refusal of five additional racetracks to pay their fees in 2017. After consideration of the various proposals developed by staff and the submission of an industry proposal by the racetracks, the Commission has elected to publish the industry proposal for public comment and consideration.

There are no negative impacts upon employment conditions in this state as a result of the proposed amendment. Failure to adopt the amendment may have negative effects on employment conditions if racing ends and the businesses that rely on that racing also close as a result.

The amendment will have a net positive effect on the state's agricultural, horse breeding, horse training, greyhound breeding, and greyhound training industry by providing the revenue the agency requires to continue operations. If the agency is forced to close due to insolvency, there will no longer be an incentive to engage in the agricultural, breeding or training efforts that support Texas racing.

All comments or questions regarding the proposed amendment may be submitted in writing within 30 days following publication of this notice in the Texas Register to Jean Cook, Assistant to the Executive Director for the Texas Racing Commission, at P.O. Box 12080, Austin, Texas 78711-2080, telephone (512) 833-6699, or fax (512) 833-6907.

The amendment is proposed under Texas Revised Civil Statutes Annotated, Article 179e, §5.01, which requires the Commission to set fees in amounts reasonable and necessary to cover the costs of regulating, overseeing, and licensing live and simulcast racing at racetracks, and under §7.05, which requires the Commission to adopt a fee schedule for occupational licenses.

The amendment implements Texas Revised Civil Statutes Annotated, Article 179e.

§311.5.License Categories and Fees.

(a) - (c) (No change.)

(d) The fee for an occupational license is as follows:

Figure: 16 TAC §311.5(d) (.pdf)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 25, 2017.

TRD-201703802

Mark Fenner

General Counsel

Texas Racing Commission

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 833-6699