Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 59. CONTINUING EDUCATION REQUIREMENTS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 59, §59.3, regarding Continuing Education Requirements. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 59, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation.

The proposed rule is necessary to implement rules being concurrently proposed which removed the requirement for registered accessibility specialists to meet continuing education requirements with an approved course provider. The proposed rules modify the list of occupations which are subject to the continuing education requirements of 16 TAC, Chapter 59, by removing registered accessibility specialists.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §59.3, to remove registered accessibility specialists from the list of licensees that must comply with continuing education provider requirements.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Tony Couvillon, has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Tony Couvillon has determined that for each year of the first five years the proposed rule is in effect, there will be an estimated loss in revenue to state government in the amount of $2,900 per year. This is a result of the loss of registration fees and course approval fees that will no longer be paid by providers of continuing education for registered accessibility specialists, who are no longer required to hold a license.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, providers that offer continuing education courses for only registered accessibility specialists will be able to offer their courses to registrants without the need to be licensed by TDLR, and no provider will need to have a registered accessibility specialist continuing education course approved. This eases regulation, saves these providers money, and might allow more potential providers to enter the industry.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

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

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rule 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

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.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency. The proposed rules require a decrease in fees to the agency by removing the occupation of registered accessibility specialist from the rules, which then removes the requirement for continuing education providers that offer only registered accessibility specialist continuing education courses to pay a license application fee to obtain a license, and the requirement to submit those types of courses to TDLR for approval and pay the corresponding fee.

5. The proposed rules do not create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rule limits an existing regulation by removing the occupation of registered accessibility specialists from the rules.

7. The proposed rules do increase or decrease the number of individuals subject to the rules' applicability. The proposed rule decreases the number of persons subject to the rule's applicability by removing the requirement for providers that offer only registered accessibility specialists continuing education courses to obtain a license.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapter 51, and Texas Government Code, Chapter 469, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rule is those set forth in Texas Occupations Code, Chapter 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the proposed rule.

§59.3.Purpose and Applicability.

These rules are promulgated to establish continuing education provider and course requirements for the following occupations regulated by the Department of Licensing and Regulation:

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

[(7) Registered accessibility specialists, as provided by Texas Government Code, Chapter 469. Additional continuing education requirements relating to registered accessibility specialists may be found in Chapter 68 of this title.]

(7) [~~(8)~~] Towing operators, as provided by Texas Occupations Code, Chapter 2308. Additional continuing education requirements relating to towing operators may be found in Chapter 86 of this title.

(8) [~~(9)~~] Water well drillers and pump installers, as provided by Texas Occupations Code, Chapters 1901 and 1902. Additional continuing education requirements relating to water well drillers and pump installers may be found in Chapter 76 of this title.

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 March 23, 2023.

TRD-202301168

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

CHAPTER 68. ELIMINATION OF ARCHITECTURAL BARRIERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 68, Subchapter A, §68.10; Subchapter B, §68.20 and §68.30; Subchapter D, §68.50; Subchapter F, §§68.70, 68.75, and 68.76; Subchapter H, §68.90 and §68.93; new rules at 16 TAC, Chapter 68, Subchapter A, §68.11 and §68.12; Subchapter B, §§68.21, 68.22, and 68.31; Subchapter C, §§68.40 - 68.42; Subchapter D, §§68.51 - 68.53; Subchapter F, §§68.73, 68.74, and 68.77; and the repeal of existing rules at 16 TAC, Chapter 68, §§68.31, 68.51 - 68.54, 68.73, 68.74, 68.79, 68.100 and §68.101, regarding the Elimination of Architectural Barriers program; and the addition of subchapter titles to the existing chapter. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 68, implement Texas Government Code, Chapter 469.

The proposed rules implement changes suggested during the internal four-year rule review, incorporate department procedures for registered accessibility specialists, amend outdated rule language, and restructure the existing rules for better organization and for the reader. The proposed rules also include changes to continuing education requirements to provide additional options for licensees.

The proposed rules are necessary to establish requirements regarding accessibility to the public, registered accessibility specialists, building and facility owners, and design professionals.

Advisory Committee Recommendations

The proposed rules were presented to and discussed by the Elimination of Architectural Barriers Advisory Committee at its meeting on February 27, 2023. The Advisory Committee made the following changes to the proposed rules: §§68.10, 68.20, 68.21, 68.30, 68.41, 68.42, 68.50 - 68.53, and 68.74. The Advisory Committee voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules create new Subchapter A, General Provisions, which includes §68.1 and §§68.10 - 68.12.

The proposed rules amend §68.10, Definitions, which revises the definition of "completion of construction" to provide clarity for documenting when construction has been completed; clarifies the definition of owner and the authority of an individual employed by an owner; adds terms for clarification; and removes definitions that are not used in the chapter or otherwise have common meanings. The proposed rules renumber the remaining definitions.

The proposed rules add new §68.11, Technical Standards and Technical Memoranda, to incorporate requirements from §68.100, which is proposed for repeal, and removes the requirement that a technical memorandum which has been drafted by the department be reviewed by the Elimination of Architectural Barriers Advisory Committee.

The proposed rules add new §68.12, Forms, which prescribe the requirements and limitations for forms submitted to and issued by the department.

The proposed rules create new Subchapter B, Registration Requirements; Exemptions, which includes §§68.20 - 68.22 and §68.30 and §68.31.

The proposed rules amend §68.20, Buildings and Facilities Subject to Compliance with the Texas Accessibility Standards, to update the language for clarity, adds provisions for pedestrian components, and relocates exemptions for primary residences to §68.30, and the option for registration and review of projects with an estimated cost of less than $50,000 to new proposed §68.21.

The proposed rules add new §68.21, Registration of Project Required, to centralize the requirement for registration of all projects subject to the Act and state leases; and adds the provision that projects less than $50,000 may be registered, which was relocated from §68.20, as discussed above.

The proposed rules add new §68.22, State Leases, to incorporate requirements from §68.101, which is proposed for repeal.

The proposed rules amend §68.30, Exemptions, to relocate the exemption for primary residences from §68.20.

The proposed rules repeal §68.31, Variance Procedures, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §68.31, Variance Procedures, to clarify the process for applying for a variance or appealing the denial of a variance request in a format that provides ease of reading for the reader.

The proposed rules create new Subchapter C, Owner Responsibilities, which include §§68.40 - 68.42.

The proposed rules add new §68.40, Owner Responsibilities, to define when an owner is subject to the chapter and clarify the duties and requirements an owner must comply with.

The proposed rules add new §68.41, Inspection Required, to prescribe the timeline and requirements that an owner must comply with when securing an inspection following completion of construction on a project.

The proposed rules add new §68.42, Designated Agent, to clarify the role of a designated agent who may act on behalf of an owner and the process to designate that person.

The proposed rules create new Subchapter D, Construction Documents; Inspections; and Compliance, which includes §§68.50 - 68.53.

The proposed rules amend §68.50, Submission of Construction Documents, to eliminate unnecessary requirements due to the online registration system; incorporates the provision that construction documents submitted to the department are department property from §68.51, which is proposed for repeal; and amends the rules for clarity and to update the language.

The proposed rules repeal §68.51, Review of Construction Documents, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §68.51, Plan Review Requirements, to incorporate §68.51, Review of Construction Documents which is proposed for repeal, to update language and clarify requirements related to review of construction documents in a manner that is easier to read.

The proposed rules repeal §68.52, Inspections, as the text is duplicative to provisions in §68.41 and §68.52.

The proposed rules add new §68.52, Inspections and Corrective Modifications, to include inspection report requirements from department procedures and incorporates provisions from §68.52, Inspections, which is proposed for repeal, and §68.53, Corrective Modifications Following Inspection, which is proposed for repeal.

The proposed rules repeal §68.53, Corrective Modifications Following Inspection, as the text is incorporated in new §68.52, discussed above.

The proposed rules add new §68.53, Transmittal Letters, to clarify the requirements related to transmittal letters by incorporating department procedures for registered accessibility specialists.

The proposed rules repeal §68.54, as the text is duplicative to provisions in proposed new §68.52, Inspections and Corrective Modifications.

The proposed rules create new Subchapter E, Advisory Committee, which includes §68.65.

The proposed rules create new Subchapter F, Registered Accessibility Specialists, which includes §68.70, §§68.73 - 68.77.

The proposed rules amend §68.70, Registered Accessibility Specialists--Qualification for Certification, by standardizing the language and format with other department program rules for license applications.

The proposed rules repeal §68.73, Registration Requirements-Renewal, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §68.73, Registered Accessibility Specialist Certification--Renewal Requirements, incorporating requirements for renewal of a certification from §68.73, which is proposed for repeal, and standardizes language and format with other TDLR program rules for renewal.

The proposed rules repeal §68.74, Continuing Education, as the text is being reproposed due to extensive changes outlined below.

The proposed rules add new §68.74, Continuing Education, to reduce the number of hours required for a registered accessibility specialist to renew a certification; removes the requirement that to be eligible for continuing education credit, a course must be approved by the department; and standardizes language for continuing education with other TDLR rules.

The proposed rules amend §68.75, Responsibilities of the Registered Accessibility Specialist, which incorporates department procedures; relocates requirements related to shared services to new §68.77; prescribes a time for maintaining records; and clarifies language.

The proposed rules amend §68.76, Standards of Conduct for the Registered Accessibility Specialist, to provide straightforward conflict of interest provisions; removes provisions related to the use of the state seal, which is not regulated by the department; and clarifies language throughout the section.

The proposed rules add new §68.77, Shared Services, which incorporates provisions from §68.75, discussed above, and department procedures for registered accessibility specialists, and sets requirements for a registered accessibility specialist to engage another registered accessibility specialist to assist in providing services to an owner.

The proposed rules repeal §68.79, Contract Providers, as this license type is not issued by the department.

The proposed rules create new Subchapter G, Fees, which includes §68.80.

The proposed rules create new Subchapter H, Enforcement, which includes §68.90 and §68.93.

The proposed rules amend §68.90, Administrative Sanctions or Penalties, to remove references to the department procedures for registered accessibility specialists as they are being incorporated into the proposed rules; remove references to contract providers which is a license type that is not issued at the department.

The proposed rules amend §68.93, Complaints, Investigations, and Audits, to remove the references to contract providers and clarify inspection provisions to align with technological advances.

The proposed rules repeal §68.100, Technical Standards and Technical Memoranda, which has been reproposed and renumbered as discussed above.

The proposed rules create new Subchapter I, General Technical Requirements, which includes §§68.102 - 68.104.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

PUBLIC BENEFITS

The proposed rules incorporate department procedures, amend outdated rule language, restructure the existing rules for better organization and for the reader, and in general provide for better implementation and regulation of the required accessibility standards of Texas. These changes will help further ensure that each building and facility subject to the statute and rules is accessible to and functional for persons with disabilities, without causing the loss of function, space, or facilities.

By removing the requirement that some of the continuing education for registered accessibility specialists must be a department-approved course, the proposed rules will allow those licensees to also earn continuing education hours from other providers that offer a broad range of courses in accessibility and industry specific topics. The proposed rules also decrease the number of continuing education hours required for registration renewal from eight to four, which potentially decreases the amount of money and time a registrant must spend on continuing education.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

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

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

GOVERNMENT GROWTH IMPACT STATEMENT

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules do not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rule expands an existing regulation by adding pedestrian route components as a public accommodation subject to the Texas Accessibility Standards, by requiring the owner, owner's designated agent, or an individual representing the owner to be present during the required inspection for accessibility standards compliance, and by requiring the use of various no-cost documents or forms. The proposed rule limits an existing regulation by removing the requirement for registered accessibility specialists to complete continuing education courses approved by TDLR. The proposed rule also reduces the number of hours required for renewal of a certification, but enable a licensee the ability to access a broad range of providers to meet those requirements.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENTS

16 TAC §§68.31, 68.51 - 68.54, 68.73, 68.74, 68.79, 68.100, 68.101

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed repeals are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the proposed repeals.

§68.31.Variance Procedures.

§68.51.Review of Construction Documents.

§68.52.Inspections.

§68.53.Corrective Modifications Following Inspection.

§68.54.Review and Inspection of Buildings and Facilities with an Estimated Construction Cost of Less than $50,000 or Not Subject to the Act.

§68.73.Registration Requirements--Renewal.

§68.74.Continuing Education.

§68.79.Contract Providers.

§68.100.Technical Standards and Technical Memoranda.

§68.101.State Leases.

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 March 23, 2023.

TRD-202301167

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §§68.10 - 68.12

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the proposed rules.

§68.10.Definitions.

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

(1) Act--Texas Government Code, Chapter 469, Elimination of Architectural Barriers [~~(the Texas Architectural Barriers Act)~~].

(2) - (4) (No change.)

[(5) Commerce--Travel, trade, traffic, transportation, or communication among the several States; between any foreign country or any territory or possession and any State; or between points in the same State and through another State or foreign country.]

(5) [~~(6)~~] Completion of Construction--The date when final payment to the contractor is made [~~a construction project results in occupancy or the issuance of a certificate of occupancy~~]. For public roadway projects, completion of construction occurs upon final payment to [~~and release of~~] the contractor performing the work or, if the work is performed by public employees, removal of barricades and opening of all traffic lanes for use.

(6) [~~(7)~~] Construction Documents--Drawings, specifications, addenda, change orders, construction change directives and other supplemental documents prepared for the purpose of regulatory approval, permitting, or construction.

~~[(8) Contract Provider--The state agency or political subdivision under contract with the department to perform plan reviews, inspections, or both.]~~

(7) [~~(9)~~] Crosswalk--That part of a roadway where motorists are required to yield to pedestrians crossing, as defined by state and local regulations, whether marked or unmarked.

(8) [~~(10)~~] Curb Line--A line that represents the extension of the face of the curb and marks the transition between the sidewalk and the gutter or roadway at a curb ramp or flush landing.

(9) Day--A calendar day.

(10) Department--The Texas Department of Licensing and Regulation.

(11) - (17) (No change.)

(18) Owner--The person(s) [~~person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other entity~~] that hold(s) [~~holds~~] title to the subject building or facility subject to compliance with the Act, TAS, and this chapter [~~For purposes under these rules and the Act, an owner may designate an agent; however, the owner remains responsible for compliance with the Act~~]. An individual employed by the owner may sign documents, request an inspection, or initiate other requests for service in accordance with this chapter if authorized by their employer.

(19) - (20) (No change.)

(21) Person--An individual, corporation, partnership, or other legal entity, including a state agency or governmental subdivision.

(22) Project File--Records retained, uploaded, or submitted to TABS.

(23) [~~(21)~~] Public Entity--Any state [~~State or local~~] government [~~or any department,~~ ] agency or unit of local government or [,] special purpose [~~purposes~~] district [~~, or other instrumentality of a State or States or local government~~].

(24) [~~(22)~~] Public Right-of-Way--Public land or property, usually in interconnected corridors, that is acquired for or dedicated to transportation purposes.

[(23) Registered Building or Facility--For the purposes of §469.101 of the Act, a registered building or facility is a construction project that has been assigned a project registration number by the department.]

(25) [~~(24)~~] Registered Accessibility Specialist--An individual who is certified by the department to perform review and inspection functions of the department.

(26) [~~(25)~~] Religious Organization--An organization that qualifies for an exemption from taxation, as a religious organization as provided in Texas Tax Code, Chapter 11, §11.20(c).

~~[(26) Rules--Title 16, Texas Administrative Code, Chapter 68, the administrative rules of the Texas Department of Licensing and Regulation promulgated pursuant to the Act.]~~

(27) (No change.)

(28) Texas Architectural Barriers Online System (TABS)--The online database for the registration of projects subject to the TAS and maintenance of project records.

~~[(28) State Agency--Aboard, commission, department, office, or other agency of state government.]~~

(29) Texas Accessibility Standards (TAS)--The collection of scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities, periodically [~~2012 Texas Accessibility Standards which were~~] adopted by the Texas Commission of Licensing and Regulation [~~and became effective March 15, 2012~~].

~~[(30) Variance Application--The formal documentation filed with the department, by which the owner requests that the department waive or modify accessibility standards.]~~

§68.11.Technical Standards and Technical Memoranda.

(a) The Texas Commission of Licensing and Regulation adopts by reference the 2012 Edition of the Texas Accessibility Standards (TAS), effective March 15, 2012.

(b) The department may publish memoranda to provide clarification of technical matters relating to the Act, TAS, and this chapter.

§68.12.Forms.

(a) To meet the requirements of this chapter, only forms prescribed by the department will be accepted.

(b) Project registration forms submitted to a registered accessibility specialist by an owner must be uploaded in TABS.

(d) A form that has not been completed will not be accepted.

(e) It is a violation of this chapter to provide false or misleading information when submitting a registration forms or project information to the department.

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 March 23, 2023.

TRD-202301161

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER B. REGISTRATION REQUIREMENTS; EXEMPTIONS

16 TAC §§68.20 - 68.22, 68.30, 68.31

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

§68.20.Buildings and Facilities Subject to Compliance [~~with the Texas Accessibility Standards~~].

(a) All buildings or facilities listed under this section are subject to compliance with the Act, TAS, and this chapter, regardless of the estimated cost of construction, unless exempted under §68.30.

(b) The following buildings and facilities are subject to compliance with the Act, TAS, and this chapter:

(1) [~~(a)~~] A building or facility used by a public entity [~~is subject to compliance with the Texas Accessibility Standards (hereinafter "TAS")~~] if it is constructed, renovated, or modified, in whole or in part, on or after January 1, 1970, using funds from the state or a county, municipality, or other political subdivision of the state.

[~~(b)~~] [A building or facility referenced by this subsection or subsection (d) that is constructed, renovated, or modified on a temporary or emergency basis e.g. man camps, fixed furniture systems, wall systems, and exhibit areas.]

(2) [~~(c)~~] A building or facility leased for use or occupied, in whole or in part, by the state under a lease or rental agreement entered into on or after January 1, 1972, except as modified under §68.22 [~~§68.101~~].

(c) [~~(d)~~] The following private buildings and facilities constructed, renovated, or modified on or after January 1, 1992, and defined as a "public accommodation" by Section 301, Americans with Disabilities Act of 1990 (42 U.S.C. Section 12181), and its subsequent amendments are subject to the Act, TAS, and this chapter:

(1) A place of lodging that includes guest rooms for short-term stays of 30 days or less where the occupant does not have the right to return to a specific room or unit after the conclusion of their stay, and under conditions and with amenities similar to a hotel, motel, or inn.

(A) Amenities include:

(i) on or off-site management and reservations service;

(ii) rooms available on a walk-up or call-in basis;

(iii) available housekeeping or linen service; and

(iv) acceptance of reservations for a guest room type without guaranteeing a particular unit or room until checking in, and without prior lease or security deposit.

(B) A place of transient lodging with no more than five rooms for rent or hire that is occupied by the proprietor as the proprietor's primary residence as provided under §68.30 is not subject to this section.

[(1) Places of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor. For the purposes of this section, a building or facility is a place of lodging" if it is:]

~~[(A) An inn, hotel, or motel; or]~~

~~[(B) A building or facility that:]~~

[(i) Provides guest rooms for sleeping for stays that are primarily short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and]

~~[(ii) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following:]~~

~~[(I) On or off-site management and reservations service;]~~

~~[(II) Rooms available on a walk-up or call-in basis;]~~

~~[(III) Availability of housekeeping or linen service; and]~~

~~[(IV) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until checking in, and without prior lease or security deposit.]~~

(2) an [~~a restaurant, bar, or other~~] establishment that serves [~~serving~~] food or drinks, including a restaurant or bar;

(3) a sports or entertainment venue, including a movie [~~motion picture house,~~] theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) a public gathering venue, including an auditorium, convention center, or lecture hall[~~, or other place of public gathering~~];

(5) a retail establishment or shopping center;

~~[(5) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;]~~

(6) a service establishment, including a laundromat, dry-cleaner, bank, barber shop, salon [~~beauty shop, travel service, shoe repair service, funeral parlor~~], gas station, [~~office of an accountant or lawyer, pharmacy, insurance office,~~] professional office, medical facility, [~~of a~~] health care provider, or hospital[~~, or other service establishment~~];

(7) a public transportation station, including a terminal or depot;

~~[(7) a terminal, depot, or other station used for specified public transportation;]~~

(8) a place of recreation, including a park, zoo, or amusement park[~~, or other place of recreation~~];

(9) a [~~museum, library, gallery, or other~~] place of public display or collection, including a museum, library or gallery;

(10) a place of education, including a day care center [~~nursery~~], elementary, secondary, undergraduate, or postgraduate private school[~~, or other place of education~~];

(11) a social service center establishment [~~day care center~~], including a senior citizen center, homeless shelter, food bank, or adoption agency[~~, or other social service center establishment~~]; [~~and~~]

(12) a place of exercise or recreation, including a gymnasium, health spa, bowling alley, or golf course;[~~, or other place of exercise or recreation.~~]

(13) a residential amenity space open to the public which is used, leased, or rented to residents, members, non-residents, or non-members;

(14) pedestrian route components that are constructed, renovated, or modified in whole or in part on or after January 1, 2024, within residential development areas where title to said elements will be transferred to a local government authority; and

(15) a building or facility that is constructed, renovated, or modified on a temporary or emergency basis including workforce housing, man camps, fixed furniture systems, wall systems, and exhibit areas.

(d) [~~(e)~~] A commercial facility is [~~Commercial facilities are~~] subject to the Act, this chapter, and compliance with TAS if it is [~~they are~~] intended for non-residential use by a private entity and its [~~if their~~] operations will affect commerce, except for [~~. Such application shall not include~~] railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars or any other railroad cars described in the Americans with Disabilities Act (ADA) §242, or covered under the ADA, Title III, railroad rights-of-way, or facilities that are covered or expressly exempted from coverage under the federal Fair Housing Act of 1968.

(e) [~~(f)~~] A building or facility [~~Buildings or facilities~~] of a religious organization is [~~are~~] subject to the Act, this chapter, and compliance with TAS except for areas as provided under §68.30.

[(g) Buildings or facilities with an estimated construction cost of less than $50,000 or not subject to the Act and compliance with TAS may be registered, reviewed, and/or inspected by a registered accessibility specialist or contract provider.]

§68.21.Registration of Project or Lease Required.

(a) Projects registration required. A building or facility being constructed, renovated, or modified with an estimated construction cost of $50,000 or more that is subject to compliance with the Act, the TAS, and this chapter must be registered with the department. To register a construction project, an owner must submit:

(1) an application on a form as prescribed by the department; and

(2) the required fee in §68.80.

(b) State lease registration required. A new or renewal lease agreement for an agency of the state of Texas with annual lease expense $12,000 or more must be registered with the department. To register a lease, a state agency must submit:

(1) an application on a form as prescribed by the department; and

(2) the required fee in §68.80.

(c) Project registration optional. A building or facility being constructed, renovated, or modified with an estimated construction cost of less than $50,000 or that is exempt under §68.30 may be registered with the department and reviewed and/or inspected by a registered accessibility specialist. A project with an estimated construction cost of less than $50,000 that is not exempt under §68.30 is subject to compliance with the Act.

§68.22.State Leases.

(a) State leased buildings or facilities with an annual lease expense of $12,000 or more must be registered with the department in accordance with §68.21.

(b) Buildings or facilities that are leased or occupied in whole or in part for use by the state, shall meet the following requirements of TAS:

(1) New construction shall comply with TAS 201.1.

(2) Additions shall comply with TAS 202.2.

(3) Alterations shall comply with TAS 202.3 and 202.4.

(4) Historic buildings or facilities shall comply with TAS 202.5.

(5) Existing buildings and facilities are ones that have not been constructed, renovated, or modified since April 1, 1994. In an existing building or facility, where alterations are not planned or the planned alterations will not affect an area containing a primary function, the following minimum requirements shall apply:

(A) If parking is required as part of the lease agreement or is provided to serve the leased area, accessible parking spaces shall comply with TAS 208 and 502.

(B) An accessible route from the parking area(s) shall comply with TAS 206 and 402.

(D) If toilet rooms or bathrooms are required by the lease agreement or are provided to serve the leased area, at least one set of men's and women's toilet rooms or bathrooms or at least one unisex toilet room or bathroom serving the leased area shall comply with TAS 213 and 603.

(E) Signage at toilet rooms or bathrooms shall comply with TAS 703. Toilet rooms or bathrooms serving the leased area which are not accessible shall be provided with signage complying with TAS 703.1, 703.2.4, 703.2.5, 703.6.2 and 703.7 indicating the location of the nearest accessible toilet room or bathroom within the facility.

(F) If drinking fountains are required by the lease agreement, or are provided to serve the leased area, at least one fountain shall comply with TAS 602. If more than one drinking fountain is provided, at least 50% shall comply with TAS 602.

(G) If public telephones are required by the lease agreement, or are provided to serve the leased area, at least one public telephone shall comply with TAS 704.

(H) If an element or space of a lease is not specified in this subsection but is present in a state leasehold, that element or space shall comply with TAS 201.1.

(c) A registered accessibility specialist shall not perform inspection services for an agency of the State of Texas occupying a building or facility that is subject to the renewal or extension of an existing lease.

§68.30.Exemptions.

The following buildings, facilities, spaces, or elements are exempt from the provisions of the Act:

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

(3) Van Accessible Parking at Garages Constructed Prior to April 1994. Parking garages where construction was started before April 1, 1994, and the existing vertical clearance of the garage is less than 98", are exempted from requirements to have van-accessible parking spaces located within the garage. If additional surface parking is provided, the required van accessible parking spaces shall be located on a surface lot in closest proximity to the accessible public entrance serving the facility; [~~and~~]

(4) Residential Facilities. Those portions of public or privately funded apartments, condominiums, townhomes, and single-family dwellings used exclusively by residents and their guests; and[.]

(5) Places of Primary Residence. A place of transient lodging with no more than five rooms for rent or hire that is occupied by the proprietor as the proprietor's primary residence.

§68.31.Variance Procedures.

(a) To request a variance waiving or modifying an accessibility standard, an owner or the owner's designated agent must submit:

(1) a complete a separate form prescribed by the department for each registered project within a single building or facility;

(2) supporting documentation, including photos, cost analyses, and code references; and

(3) the required fee in §68.80.

(b) A denied variance request may be appealed to the department in writing. An appeal must:

(1) be in writing and signed by the owner or the owner's designated agent;

(2) include supporting documentation; and

(3) include the fee required under §68.80.

(c) An appeal denied by the department may be appealed to the executive director of the department in writing and must include supporting documentation.

(d) The department and executive director will provide written notice of determinations made under this section to the owner and the person making the submission, if applicable.

(e) Variance and Appeal determinations shall be based on the information and supporting documentation submitted with the application and shall be issued in accordance with §469.151 and §469.152 of the Act.

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 March 23, 2023.

TRD-202301160

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER C. OWNER RESPONSIBILITIES

16 TAC §§68.40 - 68.42

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

§68.40.Owner Responsibilities.

(a) An owner with a construction project with an estimated construction cost of $50,000 or more is subject to compliance with the Act, TAS, and this chapter.

(b) Within 30 days of the change occurring, an owner must notify the department of a change in:

(1) contact information; or

(2) property ownership.

(c) An owner must report a change in the estimated date of completion of construction to the registered accessibility specialist.

(d) When corrective modifications are required, an owner must submit a response on a prescribed form within 30 days to the registered accessibility specialist, in accordance with §68.53, and complete the corrective modifications by the 270th day after the date of the inspection report.

(e) When there is not a design professional with overall responsibility for a registered project, the owner must submit the construction documents to a registered accessibility specialist prior to filing an application for building permit or commencement of construction.

§68.41.Inspection Required.

(a) The owner of a building or facility with a project required to be registered under §68.21 must obtain an inspection by a registered accessibility specialist no later than one year from the date of the completion of construction.

(b) A request for inspection must be in writing and submitted to a registered accessibility specialist.

(c) The owner, the owner's designated agent, or an individual representing the owner is required to be present with the registered accessibility specialist during the inspection. The individual onsite during the inspection must provide a physical or electronic signature on the inspection form prescribed by the department.

§68.42.Designated Agent.

(a) An owner may designate an agent to act on the owner's behalf by submitting a form prescribed by the department.

(b) To be valid, the form must be complete and signed by the owner or an individual employed by the owner. A parent or other person associated with the owner is not authorized to submit or sign the form on behalf of the owner.

(1) submit project information changes;

(2) request a waiver or variance;

(3) make a request for inspection;

(4) communicate with the department on behalf of the owner about the registered project;

(5) receive communications from a registered accessibility specialist; and

(6) submit verification of corrections to a registered accessibility specialist and the department.

(d) A designated agent's failure to comply with the requirements of this chapter on behalf of an owner does not excuse the owner from compliance with the Act, this chapter, and the TAS.

(e) An owner who elects to designate the same agent for multiple registered projects must submit a separate form for each registered project. A single agent designation form is not valid for multiple projects.

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 March 23, 2023.

TRD-202301162

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER D. CONSTRUCTION DOCUMENTS; PLAN REVIEWS; AND INSPECTIONS

16 TAC §§68.50 - 68.53

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

§68.50.Submission of Construction Documents.

(a) If the estimated construction cost is $50,000 or more, all [~~All~~] plans and specifications for the construction of or alteration to a building or facility subject to §469.101 of the Act must be submitted by the design professional preparing the documents along with a form prescribed by the department to a registered accessibility specialist not later than the twentieth day after the plans and specifications are issued [~~or contract provider for review if the estimated construction cost is at least $50,000~~]. In computing time under this section, Saturday, Sunday, and legal holidays are not included. All plans may be submitted in electronic format.

[(b) An architect, registered interior designer, landscape architect, or engineer with overall responsibility for the design of a building or subject to §469.101 of the Act, shall mail, ship, provide electronically, or hand-deliver the construction documents along with a Proof of Submission form to a registered accessibility specialist, or a contract provider not later than the twentieth day after the plans and specifications are issued. In computing time under this subsection, a Saturday, Sunday or legal holiday is not included.]

(b) [~~(c)~~] When [~~In instances when~~] there is not a design professional with overall responsibility, the owner of a building or facility must submit the [~~subject to §469.101 of the Act, shall mail, ship, provide electronically, or hand-deliver~~] construction documents to a registered accessibility specialist[~~, or a contract provider~~] prior to filing an application for building permit or commencement of construction.

(c) An owner or design professional may submit revised construction documents to a registered accessibility specialist to review, including change orders, addenda, or letters.

(d) Construction documents provided to the department become the property of the department and will not be returned.

[(d) An Architectural Barriers Project Registration form or Architectural Barriers Project Registration Confirmation Page must be submitted for each subject building or facility and submitted along with the project filing fee when the design professional or owner registers the construction project.]

§68.51.Plan Review Requirements.

(a) Prior to performing a plan review or plan revision, a registered accessibility specialist must have project construction documents for the building or facility.

(b) Submission of revised or supplemental construction documents to the registered accessibility specialist:

(1) prior to the recorded estimated completion of construction must be reviewed as part of a plan revision; or

(2) after completion of construction based on the estimated completion of construction are not required to be reviewed but must be uploaded in the TABS project file.

(c) After review of construction documents, the registered accessibility specialist must provide the owner or the owner's designated agent and the design professional making the submission the plan review findings on or before the 30th day from the date of the report. All plan review findings must be uploaded in TABS.

(d) A plan review or plan revision report must be typewritten and include, at a minimum:

(1) a title indicating whether the report is a "Plan Review Report" or "Plan Revision Report;"

(2) the name and certification number of the registered accessibility specialist preparing the report;

(3) date of the report;

(4) TABS project number issued by the department;

(5) facility name;

(6) project name and address; and

(7) a detailed list of each deficiency, including a reference to the TAS section number, if applicable.

§68.52.Inspections and Corrective Modifications.

(a) Prior to performing an inspection, a registered accessibility specialist must have access to the project in TABS and a written request for inspection from the owner or the owner's designated agent.

(b) To be valid, the owner, the owner's designated agent, or an individual representing the owner is required to be present during the inspection. The individual onsite during the inspection must provide a physical or electronic signature on the inspection form prescribed by the department.

(c) A registered accessibility specialist must complete an inspection report on or before the 30th day from the date of the inspection. An inspection report must be:

(1) provided to the owner on or before the 30th day from the date of the report;

(2) uploaded in TABS;

(3) typewritten and include, at a minimum:

(A) heading titled "Inspection Report;"

(B) the name and certification number of the registered accessibility specialist preparing the report;

(D) date of the inspection;

(E) TABS project number issued by the department;

(F) facility name;

(G) project name and address; and

(H) violations cited in detailed, followed by the TAS section number, including specific information identifying the location of each violation.

(d) If corrective modifications are required to achieve compliance the owner must:

(1) respond to the inspection report on a form prescribed by the department submitted to the registered accessibility specialist not later than the 30th day of the date of the inspection report; and

(2) complete corrective modifications on or before the 270th day from the date of the inspection report.

(e) The owner's corrective modification response must be uploaded in TABS on or before the 30th day from receipt.

§68.53.Transmittal Letters.

(a) A transmittal letter must be provided to an owner on or before the 30th day from the completion of a plan review, plan revision, or inspection and uploaded in TABS.

(b) A transmittal letter must be typewritten and include, at a minimum:

(1) date of the report;

(2) the name and certification number of the registered accessibility specialist preparing the letter;

(3) owner name and address;

(4) TABS project number issued by the department;

(5) project name, facility name, and address;

(6) results paragraph, as applicable;

(7) owner action paragraph, as applicable; and

(8) disclaimer paragraph, as applicable.

The agency certifies that legal counsel has reviewed the 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 March 23, 2023.

TRD-202301163

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER F. REGISTERED ACCESIBILITY SPECIALISTS

16 TAC §§68.70, 68.73 - 68.77

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

§68.70.Registered Accessibility Specialist Certification--Eligibility, [~~Specialists--~~] Qualifications, and Application Requirements [~~for Certification~~].

(a) A person may not perform or offer to provide plan review or inspection services unless the person holds a [~~An applicant seeking~~] departmental certification as a registered accessibility specialist. To be certified, an individual must [~~in order to perform plan review or inspection services shall meet the following minimum qualifications~~]:

(1) meet [~~Any~~] one of the following qualifications:

(A) hold a degree in architecture, engineering, interior design, landscape architecture, or equivalent, and at least [~~a minimum of~~] one year experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent; [or]

(B) have at least eight years of experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent; or

(C) have at least four years of experience related to building inspection, building planning, accessibility design or review, accessibility inspection, or equivalent, and certification [~~as an accessibility inspector/plans examiner granted~~] by a model building code organization as an accessibility inspector or plans examiner; [~~and~~]

(2) pass an examination approved by the department; [.]

(3) successfully pass a criminal history background check; and

(4) submit the required fee under §68.80.

(b) An applicant must submit the following required documentation in a manner prescribed by the department:

(1) a complete application on a department approved form; and

(2) verifiable evidence that the applicant meets the requirements in subsection (a)(1).

[(b) An applicant shall submit a complete application for certification on the Registered Accessibility Specialist Application form, accompanied by all applicable fees. An applicant must complete all requirements, including satisfactory completion of an examination, no later than one year after the date the application is filed. If all requirements are not met within one year, a new application shall be submitted.]

(d) An applicant must complete all requirements, including passing the examination in subsection (a)(2), no later than one year from the date the application is submitted. After that year the applicant will be required to submit a new application and all required materials in addition to paying a new application fee.

§68.73.Registered Accessibility Specialist Certification--Renewal Requirements.

(a) To renew a certification, a registered accessibility specialist must:

(1) submit a complete renewal application in a manner prescribed by the department;

(2) successfully pass a criminal history background check;

(3) complete eight hours of continuing education as required under §68.74; and

(4) submit the required fee under §68.80.

(b) A registered accessibility specialist with an expired certification must not provide plan review or inspection services.

§68.74.Continuing Education.

(a) To renew a certification, a registered accessibility specialist must complete four hours of continuing education as provided in this section.

(b) To meet the requirements of this section, continuing education hours must include instruction in one or more of the following topics:

(1) Texas Government Code, Chapter 469, Elimination of Architectural Barriers;

(2) 16 Texas Administrative Code, Chapter 68 - Administrative Rules;

(3) 2012 Texas Accessibility Standards;

(4) technical memoranda published by the department;

(5) 2010 Standards for Accessible Design or other accessibility guidelines proposed or adopted by the Access Board or United States Department of Justice;

(6) Americans with Disabilities Act;

(7) International Code Council/American National Standards Institute (ANSI) A117.1 Standard on Accessible and Usable Buildings and Facilities; or

(8) building and life safety codes related to egress.

(b) A registered accessibility specialist must certify completion of continuing education hours at the time of renewal in a manner prescribed by the department.

(c) Continuing education hours must have been completed within the term of the current certification, in the case of a timely renewal. For a late renewal, the continuing education hours must have been completed within the one-year period immediately prior to the date of renewal.

(d) A registered accessibility specialist will not receive continuing education credit for attending the same course more than once during the one-year renewal period.

(e) A registered accessibility specialist must retain a copy of the certificate of completion for a course for three years after the date of completion. In conducting an inspection or investigation of a registered accessibility specialist, the department may examine the registered accessibility specialist's records to determine compliance with this section.

(f) This section applies to certifications that expire on or after July 1, 2023.

§68.75.Responsibilities of the Registered Accessibility Specialist.

(a) A registered [~~Registered~~] accessibility specialist [~~specialists~~] may set and collect fees for services rendered [,]but must submit [~~are responsible for submitting~~] to the department [~~any~~] fees received [~~the registered accessibility specialist may receive~~] on behalf of the department no later than 30 days after receipt.

(b) A registered accessibility specialist must secure written authorization:

(1) from an owner prior to performing a plan review, inspection, or related activity of a building or facility with an estimated construction cost of less than $50,000 or that is not subject to the Act; and

(2) from the department prior to performing a plan review, inspection, or related activity for a building or facility that will be leased or occupied by an agency of the State of Texas.

(c) A registered accessibility specialist must maintain project files for a period of one year following the closure of the project in TABS.

(d) A registered accessibility specialist is required to upload a change in the estimated date of completion of construction within 30 days of receipt from the owner.

[(b) Registered accessibility specialists may share services by engaging the services of another registered accessibility specialist; however each registered accessibility specialist will be held accountable for their own work product and must adhere to all laws, rules, and procedures.]

[(c) Records maintained by registered accessibility specialists, as required by department rules or procedures, are subject to the provisions of the Texas Government Code, Chapter 552, Texas Public Information Act.]

~~[(d) Registered accessibility specialists shall comply with all procedures established by the department.]~~

(e) A registered [~~Registered~~] accessibility specialist must [~~specialists shall~~] provide written notification to the department of changes to contact information within [~~thirty (~~]30[)] calendar days of a change occurring.

§68.76.Standards of Conduct [~~for the Registered Accessibility Specialist~~].

(a) Competency. A [~~The~~] registered accessibility specialist shall ensure compliance with, be knowledgeable of, and adhere to the Act, the TAS, and this chapter [~~Technical Memoranda and Bulletins published by the department, and all procedures established by the department~~]. A [~~It is the obligation of the~~] registered accessibility specialist shall [to] exercise reasonable judgment and skill in the performance of plan reviews, inspections, and related activities.

(b) Integrity. A registered accessibility specialist shall not:

(1) be deceitful or make misrepresentations, whether by acts of commission or omission, in the performance of plan review, inspection, and related activities; or

(2) commit acts or practices that constitute threats, coercion, or extortion.

[(b) Integrity. A registered accessibility specialist shall be honest and trustworthy in the performance of plan review, inspection, and related activities, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited.]

[(c) Interest. The primary interest of the registered accessibility specialist is to ensure compliance with the Act, the rules, and the TAS. The registered accessibility specialist's position, in this respect, should be clear to all parties concerned while conducting plan reviews, inspections, and related activities.]

(c) [~~(d)~~] Conflict of Interest. [A registered accessibility specialist is obliged to avoid conflicts of interest and the appearance of a conflict of interest. A conflict of interest exists when a registered accessibility specialist performs or agrees to perform a plan review, inspection, or related activity for a project in which he/she has a financial interest, whether direct or indirect. A conflict of interest also exists when a registered accessibility specialist's professional judgment and independence are affected by his/her own family, business, property, or other personal interests or relationships.]

(1) If a registered accessibility specialist has any business association or financial interest which might reasonably appear to influence the individual's judgment in connection with the performance of a professional service and thereby jeopardize an interest of the registered accessibility specialist's current or prospective client or employer, the registered accessibility specialist shall promptly inform the client or employer in writing of the circumstances of the business association or financial interest.

(2) A registered accessibility specialist shall not solicit or accept, directly or indirectly, any financial or other valuable consideration, material favor, or other benefit of any substantial nature, financial or otherwise, from more than one party in connection with a single project or assignment unless the circumstances are fully disclosed in writing to all parties.

(3) A registered accessibility specialist shall not perform plan reviews, inspections, or related activities while also providing consulting or other professional services on the same registered project.

(d) [~~(e)~~] Specific Rules of Conduct. A registered accessibility specialist shall not:

(1) - (7) (No change.)

(8) perform a plan review, inspection, or related activity on a building or facility wherein the registered accessibility specialist participated in creating the overall design of the current project; or

~~[(9) use the Texas State seal without obtaining the appropriate license in accordance with Texas Business and Commerce Code, Chapter 17, §17.08(c); or]~~

(9) [~~(10)~~] represent himself or herself as an employee of the department or as a person hired by the department.

§68.77.Shared Services.

(a) A registered accessibility specialist may engage the services of another registered accessibility specialist to provide plan review or inspection services.

(b) Each registered accessibility specialist engaged in shared services must:

(1) have a current departmental certification;

(2) complete the assigned plan review or inspection on or before the 30th day from accepting the project in TABS; and

(3) not alter the work product of the other registered accessibility specialist, which includes making amendments to a plan review, inspection report, or corrective modification letter.

The agency certifies that legal counsel has reviewed the 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 March 23, 2023.

TRD-202301165

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879

SUBCHAPTER H. ENFORCEMENT

16 TAC §68.90, §68.93

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Government Code, Chapter 469, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

§68.90.Administrative Sanctions or Penalties.

(a) If a person violates any provision of the Act, the rules, TAS, [~~procedures,~~] or an order of the executive director or commission, proceedings may be instituted to impose administrative sanctions, administrative penalties, or both administrative penalties and sanctions in accordance with the provisions of the Act; Texas Occupations Code, Chapter 51; and Title 16, Texas Administrative Code, Chapter 60 (relating to the Texas Commission of Licensing and Regulation).

(b) It is a violation of the Act for a person to perform a plan review or inspection function of the department, unless that person is a department employee or [,] a registered accessibility specialist[~~, or a contract provider~~]. A person who is not a [~~department employee, a~~] registered accessibility specialist[~~, or a contract provider~~] and performs a plan review or inspection function of the department is subject to administrative penalties in accordance with the Act or Texas Occupations Code, Chapter 51 and Title 16, Texas Administrative Code, Chapter 60.

§68.93.Complaints, Investigations, and Audits.

(a) (No change.)

(b) Investigations and Audits. Owners of buildings and facilities subject to compliance with the Act, TAS, and this chapter, are subject to investigation by the department. Registered accessibility specialists [~~and contract providers~~] are subject to investigation and audit by the department.

(c) Inspection [~~and Copying~~] of Records. Records pertaining to a project for which plan review, inspection, or related activities have been or will be performed, must [~~shall~~] be made available by the registered accessibility specialist for inspection upon request [~~and copying by the department~~ ]. Records must be uploaded in TABS on or before the 14th day [~~The registered accessibility specialist shall make said records available within fourteen (14) calendar days~~] of receiving a written request from the department, or within a time prescribed by the department.

The agency certifies that legal counsel has reviewed the 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 March 23, 2023.

TRD-202301166

Della Lindquist

Interim General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: May 7, 2023

For further information, please call: (512) 475-4879