Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 70. INDUSTRIALIZED HOUSING AND BUILDINGS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 70, §70.100 and §70.101, regarding the Industrialized Housing and Building program. These proposed changes are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 70, implement Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings.

The proposed changes to 16 TAC §70.100 update the mandatory building codes used for the construction of all industrialized housing and buildings, modules, and modular components to more recent versions. The proposed changes to 16 TAC §70.101 amend the mandatory building codes after a determination by the code council that the amendments are in the public interest. These amendments will become effective no earlier than 180 days from the determination date. The proposed rules are necessary to ensure the mandatory building codes used are up to date.

Code Council Recommendations

The proposed rules were presented to and discussed by the Texas Industrialized Building Code Council at its meeting on July 27, 2023. The Code Council did not make any changes to the proposed rules. The Code Council voted and recommended that the proposed rules be published in the Texas Register for public comment. Following the meeting, staff made technical corrections.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §70.100(a) to set the effective date of the mandatory building codes for April 1, 2024.

The proposed rules amend §70.100(c) through (g) and §70.100(i) to reflect the adoption of the 2021 versions of each mandatory building code.

The proposed rules amend §70.100(h) to reflect the adoption of the 2015 version of the International Energy Conservation Code (IECC), identifies the applicable edition of the IECC as the edition adopted by rule by State Energy Conservation Office, and describes how conflict between editions of the individual international codes are settled.

The proposed rules amend §70.100(j) to reflect the adoption of the 2020 version of the National Electrical Code.

The proposed rules amend §70.100(k) to update the graphic table of past editions of mandatory building codes.

The proposed rules amend §70.101(c)(3) to modify Section 107.1 of the 2021 International Building Code to allow the filing of submittal documents in a digital format if allowed by the building official.

The proposed rules amend §70.101(c)(4)(A) to modify Section 111.1 of the 2021 International Building Code to clarify how a certificate of occupancy should be construed.

The proposed rules amend §70.101(c)(6)(A) to reflect the renumbering of former Section 1101.2 to Section 1102.1.

The proposed rules amend §70.101(c)(6)(B) to delete Sections 1103 through 1112.

The proposed rules amend §70.101(c)(7)(A) to reflect the renumbering of former Section ICC A117.1-09 to ICC A117.1-17.

The proposed rules amend §70.101(c)(7)(B) to update the referenced code sections.

The proposed rules amend §70.101(c)(7)(C) to update the NFPA Standard to 70-20, National Electrical Code.

The proposed rules amend §70.101(d) to reflect the adoption of the 2021 International Residential Code.

The proposed rules amend §70.101(d)(2)(D) by updating the appendices considered part of the code.

The proposed rules amend §70.101(d)(4) to add language regarding the submission of submittal documents.

The proposed rules amend §70.101(d)(5)(A) to clarify how a certificate of occupancy should be construed.

The proposed rules amend §70.101(d)(7) to reflect code language that has been reorganized and is now set out in Section R302.2.2 Common Walls. The language specifies characteristics of common walls in townhouses. The exception previously stated has been removed from the rules and replaced with new language as result of a reorganization of Section R302.2 Townhouses.

The proposed rules add §70.101(d)(7)(A), which amends Section R302.2.2(1) to apply when a Section P2904-compliant fire sprinkler system is provided.

The proposed rules add §70.101(d)(7)(B), which amends Section R302.2.2(2) to apply when a Section P2904-compliant fire sprinkler system is not provided.

The proposed rules add §70.101(d)(7)(C), which amends Section R302.2.2 to apply an exception in a specific circumstance.

The proposed rules amend §70.101(d)(8) to reflect the renumbering of former Section R303.9 to R303.10.

The proposed rules amend §70.101(d)(11)(B) to delete Section N1101.3 through Section N1113.

The proposed rules amend §70.101(d)(13)(B) to reflect the adoption of the 2020 National Electrical Code.

The proposed rules amend §70.101(e) to reflect the adoption of the 2021 International Fuel Gas Code.

The proposed rules amend §70.101(e)(2)(A) to add language stating that "Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."

The proposed rules amend §70.101(e)(3) to reflect the adoption of the 2021 International Existing Building Code.

The proposed rules amend §70.101(f) to reflect the adoption of the 2021 International Mechanical Code.

The proposed rules amend §70.101(f)(2)(A) to add language stating that "Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."

The proposed rules amend §70.101(f)(3) to reflect the adoption of the 2021 International Existing Building Code.

The proposed rules amend §70.101(g) to reflect the adoption of the 2021 International Plumbing Code.

The proposed rules amend §70.101(g)(2)(C) to identify the terms under which moved buildings would be considered compliant with current mandatory building codes.

The proposed rules amend §70.101(g)(3)(A) to reflect the renumbering of former Section 403.5 to Section 403.7.

The proposed rules amend §70.101(g)(3)(B) to reflect the renumbering of former Section 403.5.1 to Section 403.7.1.

The proposed rules amend §70.101(g)(3)(C) to reflect the renumbering of former Section 403.5.2 to Section 403.7.2.

The proposed rules amend §70.101(g)(3)(D) to reflect the renumbering of former Section 403.5.3 to Section 403.7.3.

The proposed rules amend §70.101(g)(4) to reflect the adoption of the 2021 International Existing Building Code.

The proposed rules amend §70.101(i) to reflect the adoption of the 2021 International Existing Building Code.

The proposed rules amend §70.101(i)(1) to reflect the changing of the title of the section from Section 101 General to Section 101 Scope and General Requirements.

The proposed rules amend §70.101(i)(3) to reflect the renumbering of former Section 1401.2 to Section 1301.2. The proposed rules also clarify the applicability of the code's provisions to existing occupancies.

The proposed rules amend §70.101(i)(4)(B) to add the effective month and year, March 2012, of the referenced standard.

The proposed rules amend §70.101(j) to reflect the reflect the adoption of the 2020 National Electrical Code.

The proposed rules amend §70.101(j)(1) to add language clarifying the requirements for conductors rated up to 2000 volts.

The proposed rules add §70.101(j)(3) to remove Section 210.8(F) of the 2020 National Electrical Code regarding ground-fault circuit interrupters.

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, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of state or local 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, the public benefit will be continued consistency with local jurisdictions in addition to making newer and more efficient materials available to Industrialized Manufacturers and Builders. The proposed rules would also provide a minimum level of protection from hazards, accessibility to users, and maintenance of public health. Manufacturers would also have the regulatory consistency necessary to invest in the production and development of products that meet these common needs. Lastly, designers, contractors, and inspectors would have consistent criteria to follow.

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. The majority of the new requirements in the proposed codes mirror the codes currently adopted and in use by local jurisdictions. Any increase in costs caused by the use of newly developed products is optional and the authorization of the use of these products does not create a requirement to use a more expensive product.

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.

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

6. The proposed rules expand, limit, or repeal an existing regulation. New versions of the applicable codes are being adopted; thus, the previous versions of the applicable codes will no longer be effective.

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

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 Shamica Mason, 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 rules are proposed under Texas Occupations Code, Chapters 51 and 1202, 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 rules are those set forth in Texas Occupations Code, Chapters 51 and 1202. No other statutes, articles, or codes are affected by the proposed rules.

§70.100.Mandatory Building Codes.

(a) Effective April 1, 2024 [~~August 1, 2017~~], all industrialized housing and buildings, modules, and modular components, shall be constructed in accordance with the codes referenced in subsection (c) - (j). The 2015 editions of the International codes as identified in subsection (c) - (i), as well as the 2014 edition of the National Electrical Code identified in subsection (j), shall remain in effect through March 31, 2024. All work permitted or started before April 1, 2024, may be completed with the 2015 editions of the International codes and the 2014 edition of the National Electrical Code.

(b) Other codes referenced in any of the mandatory building codes adopted in subsection (c) - (j), shall be considered part of the requirements of these codes to the prescribed extent of each such reference.

(c) The International Building Code,2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Building Code of the Texas Industrialized Housing and Buildings Program.

(d) The International Residential Code, 2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Residential Code for one- and two-family dwellings of the Texas Industrialized Housing and Buildings Program.

(e) The International Fuel Gas Code, 2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Fuel Gas Code of the Texas Industrialized Housing and Buildings Program.

(f) The International Mechanical Code, 2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Mechanical Code of the Texas Industrialized Housing and Buildings Program.

(g) The International Plumbing Code, 2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Plumbing Code of the Texas Industrialized Housing and Buildings Program.

(h) The International Energy Conservation Code, 2015 edition, published by the International Code Council, is adopted as the Energy Conservation Code of the Texas Industrialized Housing and Buildings Program.

(1) The applicable edition of the International Energy Conservation Code is the edition adopted by rule by the State Energy Conservation Office pursuant to Chapter 388, Health and Safety Code.

(2) Conflicts between editions of the International Building Codes and the adopted version of the International Energy Conservation Code shall be resolved in favor of the more stringent code. If the more stringent code cannot be determined, the department shall make a determination as to which code controls.

(i) The International Existing Building Code, 2021 [~~2015~~] edition, published by the International Code Council, is adopted as the Existing Building Code for industrialized buildings that are altered in accordance with §70.74(f).

(j) The National Electrical Code, 2020 [~~2014~~] edition, published by the National Fire Protection Association, is adopted as the Electrical Code of the Texas Industrialized Housing and Buildings Program.

(k) The effective dates of adoption of past editions of the mandatory building codes are as follows:

Figure: 16 TAC §70.100(k) (.pdf)

~~Figure: 16 TAC §70.100(k)~~

§70.101.Amendments to Mandatory Building Code.

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

(1) Amend Section 101 Scope and General Requirements as follows.

(A) - (G) (No change.)

(2) (No change.)

(3) Amend Section 107.1 General to read as follows [~~by adding the following~~]: "Submittal documents consisting of construction documents, statement of special inspections, geotechnical report and other data shall be submitted in two or more sets, or in a digital format if allowed by the building official, with each permit application. The construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Where special conditions exist, the building official is authorized to require additional construction documents to be prepared by a registered design professional. Construction documents depicting the structural design of buildings to be located in hurricane prone regions shall be prepared and sealed by a Texas licensed professional engineer."

(4) Amend Section 111 Certificate of Occupancy as follows.

(A) Amend Section 111.1 Change of [~~Use and~~] occupancy to read as follows: "A building or structure shall not be used or occupied in whole or in part, and a change in the existing use or occupancy classification of a building or structure or portion thereof shall not be made, until the local building official has issued a certificate of occupancy in accordance with the locally adopted rules and regulations. Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction. Certificates presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. Exception: Certificates of occupancy are not required for work exempt from permits under Section 105.2."

(B) - (E) (No change.)

(5) (No change.)

(6) Amend Chapter 11 Accessibility as follows.

(A) Amend Section 1102.1 [~~1101.2~~] Design to read as follows: "Buildings and facilities shall be designed and constructed to be accessible in accordance with this code and the Texas Accessibility Standards (TAS)."

(B) Delete Section 1103 [~~1102~~] through Section 1112 [~~1111~~].

(7) Amend Chapter 35 Referenced Standards as follows.

(A) Delete the following standard: "ICC A117.1-17, Accessible and Usable Buildings and Facilities". [~~"ICC A117.1-09, Accessible and Usable Buildings and Facilities."~~]

(B) Add TDLR, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711 as a promulgating agency; add 2012 TAS, Texas Accessibility Standards as adopted under 16 Texas Administrative Code, Chapter 68 as the referenced standard; and add code sections 202, 907.5.2.3.3, 1009.8.2, 1009.9, 1009.11, 1010.2.13.1, [~~1010.1.9.7,~~] 1012.1, 1012.6.5, 1012.10, 1013.4, 1023.9, 1102.1, 1108.2, 1110.1, 1110.2, 1110.5.1, 1110.5.2, 1111.3, 1111.4, 1111.4.2, 1112.3, 1112.4, 1112.5, and 1112.5.2 [~~and 1101.2,~~] as the referenced code sections.

(C) Add code section 101.4.8 as a referenced code section for NFPA Standard 70-20 [~~70-14~~], National Electrical Code.

(8) (No change.)

(d) The 2021 [~~2015~~] International Residential Code shall be amended as follows.

(1) Amend Section R101 Scope and General Requirements as follows.

(A) - (B) (No change.)

(2) Amend Section R102 Applicability as follows.

(A) - (C) (No change.)

(D) Amend Section R102.5 Appendices by adding the following: "Appendices AG, AH, AK, AP, AQ, and AT [~~G, H, K, P, S and U~~] shall be considered part of this code."

(E) (No change.)

(3) (No change.)

(4) Amend Section R106.1 Submittal documents by adding the following: "Submittal documents consisting of construction documents, and other data shall be submitted in two or more sets, or in a digital format if allowed by the building official, with each application for a permit. The construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Where special conditions exist, the building official is authorized to require additional construction documents to be prepared by a registered design professional. Construction documents depicting the structural design of buildings to be located in hurricane prone regions and in the first tier counties along the Texas coast and designated catastrophe areas as defined by the Texas Department of Insurance (TDI) shall be prepared and sealed by a Texas licensed professional engineer."

(5) Amend Section R110 Certificate of Occupancy as follows.

(A) Amend Section R110.1 Use and change ofoccupancy [~~by amending the first sentence~~] to read as follows: "A building or structure shall not be used or occupied in whole or in part, and a change in the existing use or occupancy classification of a building or structure or portion thereof shall not be made, until the local building official has issued a certificate of occupancy in accordance with locally adopted rules and regulations. Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction. Certificates presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid."

(B) - (F) (No change.)

(6) (No change.)

(7) Amend Section R302.2.2 Common walls, to read as follows: "Common walls separating townhouse units shall be assigned a fire-resistance rating in accordance with item (1) or (2) and shall be rated for fire exposure from both sides. Common walls shall extend to and be tight against the exterior sheathing of the exterior walls, or the inside face of exterior walls without stud cavities, and the underside of the roof sheathing. The common wall shared by two townhouse units shall be constructed without plumbing or mechanical equipment, ducts or vents, other than water-filled fire sprinkler piping in the cavity of the common wall. The wall shall be rated for fire exposure from both sides and shall extend to and be tight against exterior walls and the underside of the roof sheathing. Electrical installations shall be in accordance with the National Electrical Code, NFPA 70 as adopted. Penetrations of the membrane of common walls for electrical outlet boxes shall be in accordance with Section R302.4.

(A) Amend Section R302.2.2(1), to read as follows: "Where a fire sprinkler system in accordance with Section P2904 is provided, the common wall shall be not less than a 1-hour fire-resistance-rated wall assembly tested in accordance with ASTM E119 or UL 263 or Section 703.2.2 of the International Building Code."

(B) Amend Section R302.2.2(2), to read as follows: "Where a fire sprinkler system in accordance with Section P2904 is not provided, the common wall shall be not less than a 2-hour fire-resistance-rated wall assembly tested in accordance with ASTM E119 or UL 263 or Section 703.2.2 of the International Building Code."

(C) Amend Section R302.2.2 Common walls - Exception to read as follows: Exception: "Common walls are permitted to extend to and be tight against the inside of the exterior walls if the cavity between the end of the common wall and the exterior sheathing is filled with a minimum of two 2-inch nominal thickness wood studs."

[(7) Amend Section R302.2 Townhouses Item #2, by adding the following exception: Exception: Two structurally independent one-hour fire-resistance-rated wall assemblies, tested in accordance with ASTM E 119 or UL 263 with exposure from both sides, may be substituted for a 2-hour fire-resistance-rated common wall assembly. The walls shall be constructed without plumbing or mechanical equipment, ducts or vents in the cavity of the walls. Penetrations of each wall for electrical outlet boxes shall be in accordance with Section R302.4.]

(8) Amend Section R303.10 [~~R303.9~~] Required heating to read as follows: "Every dwelling unit shall be provided with heating facilities capable of maintaining a minimum room temperature of 68Â°F (20Â°C) at a point 3 feet (914 mm) above the floor and 2 feet (610 mm) from exterior walls in habitable rooms at the design temperature. The installation of one or more portable space heaters shall not be used to achieve compliance with this section."

(9) - (10) (No change.)

(11) Amend Chapter 11 Energy Efficiency as follows.

(A) (No change.)

(B) Delete Section N1101.3 through Section N1113 [~~N1111~~].

(12) (No change.)

(13) Amend Chapter 44 Referenced Standards as follows.

(A) (No change.)

(B) Add code section R102.3 and delete code sections E3401.1, E3401.2, E4301.1, Table E4303.2, E4304.3, and E4304.4 as referenced code sections for NFPA Standard 70-20 [~~70-14~~], National Electrical Code.

(14) (No change.)

(e) The 2021 [~~2015~~ ] International Fuel Gas Code shall be amended as follows.

(1) (No change.)

(2) Amend Section 102 Applicability as follows.

(A) Amend Section 102.4 Additions, alterations or repairs to read as follows [~~by replacing the first sentence with the following~~]: "The provisions of the International Existing Building Code shall apply to all matters governing the repair, alterations, or additions of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site. Additions, alterations, or repairs shall not cause an existing installation to become unsafe, hazardous, or overloaded."

(B) - (D) (No change.)

(3) Amend Chapter 8 Referenced Standards by adding ICC Standard IEBC-21 [~~IEBC-15~~] International Existing Building Code, referenced in code sections 102.4 and 102.5.

(f) The 2021 [~~2015~~ ] International Mechanical Code shall be amended as follows.

(1) (No change.)

(2) Amend Section 102 Applicability as follows.

(A) Amend Section 102.4 Additions, alterations or repairs to read as follows [~~by replacing the first sentence with the following~~]: "The provisions of the International Existing Building Code shall apply to all matters governing the repair, alterations, or additions of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site. Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."

(B) - (D) (No change.)

(3) Amend Chapter 15 Referenced Standards by adding ICC Standard IEBC-21 [~~IEBC-15~~], International Existing Building Code, referenced in code sections 102.4 and 102.5.

(g) The 2021 [~~2015~~ ] International Plumbing Code shall be amended as follows.

(1) (No change.)

(2) Amend Section 102 Applicability as follows.

(A) - (B) (No change.)

(C) Amend Section 102.7 Moved buildings to read as follows [~~add the following sentence~~]: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."

(D) (No change.)

(3) Amend Section 403 Minimum Plumbing Facilities as follows.

(A) Add new Section 403.7 [~~403.5~~] Industrialized housing and buildings exceptions to read as follows: "Plumbing fixtures for industrialized buildings shall be provided as required by Table 403.1 except as allowed in Sections 403.7.1, 403.7.2 and 403.7.3 [~~403.5.1, 403.5.2, and 403.5.3~~]."

(B) Add new Section 403.7.1 [~~403.5.1~~] Buildings that are not normally occupied to read as follows: "Buildings, such as equipment or communication shelters, that are not normally occupied or that are only occupied to service equipment, shall not be required to provide plumbing facilities. EXCEPTION: Buildings that are not normally occupied that are also classified as a Group H occupancy must be provided with plumbing facilities required for this type of occupancy such as requirements for emergency showers and eyewash stations."

(C) Add new Section 403.7.2 [~~403.5.2~~] Other industrialized buildings to read as follows: "All other industrialized buildings shall contain the minimum plumbing fixtures required in accordance with Table 403.1 unless the building is a non-site specific building and the plans and the data plate contain a special condition/limitation note that the minimum number of required fixtures shall be provided in another building located on the installation site with a path of travel that does not exceed a distance of 500 feet. The plumbing facilities must be accessible to the occupants of the industrialized building. Non-site specific buildings and special condition limitation notes shall be as defined in the 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program."

(D) Add new Section 403.7.3 [~~403.5.3~~] Requirements for service sinks for industrialized buildings to read as follows: "Commercial industrialized buildings with areas of less than or equal to 1,800 square feet shall not be required to contain a service sink provided that the building contains a lavatory and water closet that can be substituted for the service sink. EXCEPTION: A building of less than 1,800 square feet in area without any plumbing facilities shall comply with section 403.7.2 [~~403.5.3~~].

(4) Amend Chapter 15 [13] Referenced Standards by adding ICC Standard IEBC-21[~~IEBC-15~~], International Existing Building Code, referenced in code sections 102.4 and 102.5.

(h) (No change.)

(i) The 2021 [~~2015~~ ] International Existing Building Code shall be amended as follows.

(1) Amend Section 101 Scope and General Requirements as follows.

(A) - (B) (No change.)

(2) (No change.)

(3) Amend [~~the first sentence~~] of Section 1301.2 [~~1401.2~~] Applicability to read as follows: "Existing buildings in which there is work involving additions, alterations or changes of occupancy shall be made to conform to the requirements of this chapter or the provisions of Chapters 6 through 12. The provisions of Sections 1301.2.1 through 1301.2.6 shall apply to existing occupancies that will continue to be, or are proposed to be, in Groups A, B, E, F, I-2, M, R and S. These provisions shall also apply to Group U occupancies where such occupancies are undergoing a change of occupancy or a partial change in occupancy with separations in accordance with Section 1301.2.2. These provisions shall not apply to buildings with occupancies in Group H, I-1, I-3, or I-4 [Structures existing prior to August 1, 2017, in which there is work involving additions, alterations or changes of occupancy shall be made to conform to the requirements of this chapter or the provisions of Chapters 5 through 13]."

(4) Amend Chapter 16 [15] Referenced Standards as follows.

(A) (No change.)

(B) Amend to read as follows: [~~Add~~] "TDLR, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas [TX] 78711 as a promulgating agency; add 2012 TAS - effective March 2012, Texas Accessibility Standards as adopted under 16 Texas Administrative Code, Chapter 68 as the referenced standard; and add code sections 102.4, 410.8.2, 410.8.3, 410.8.10, 705.1.2, and 705.1.3 as the referenced code sections."

(j) The 2020 [~~2014~~ ] National Electrical Code shall be amended as follows.

(1) Amend [~~Add the following to~~] Article 310.1 Scopeto read as follows: "This article covers general requirements for conductors rated up to and including 2000 volt and their type designations, insulations, markings, mechanical strengths, ampacity ratings, and uses. These requirements do not apply to conductors that form an integral part of equipment, such as motors, motor controllers, and similar equipment, or to conductors specifically provided for elsewhere in this Code. "Aluminum and copper-clad aluminum shall not be used for branch circuits in buildings classified as a residential occupancy. Aluminum and copper-clad aluminum conductors, of size number 4 AWG or larger, may be used in branch circuits in buildings classified as occupancies other than residential."

(2) Add new Article 545.14, Testing, to read as follows.

(A) - (B) (No change.)

(3) Remove Section 210.8(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 11, 2023.

TRD-202303368

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

For further information, please call: (512) 463-7750

CHAPTER 91. DOG OR CAT BREEDERS PROGRAM

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 91, §§91.10, 91.20, 91.22 - 91.24, 91.27 - 91.30, 91.50 - 91.55, 91.57, 91.58, 91.66, 91.73, 91.74, 91.76, 91.77, 91.80, 91.90 - 91.92, 91.100 - 91.105, 91.107, 91.112, and 91.202; proposes new rules at §§91.61 - 91.65; and proposes the repeal of existing rules at §91.65, regarding the Licensed Breeder program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 91, implement Texas Occupations Code, Chapter 802. This rulemaking implements Senate Bill 876, 88th Legislature, Regular Session (2023), which amended Chapter 802.

S.B. 876 made four significant changes to Chapter 802. First, it lowered the minimum number of adult intact female dogs or cats possessed by a person who is engaged in the business of breeding and selling them from 11 to five, thus increasing the number of breeders now required to obtain a license. Second, the condition that a person sell at least 20 animals per year before being subject to licensure was removed, so the number of dogs or cats sold is irrelevant to the license requirement. Third, a new exemption from licensing was added for those who breed dogs primarily for breed or conformation shows or similar organized performance events. Finally, the existing exemptions for breeders engaged in breeding dogs primarily for personal use for herding or other agricultural uses; hunting, including tracking, chasing, pointing, flushing, or retrieving game; or for competing in field trials, hunting tests, or similar organized performance events were expanded to exempt those who breed dogs for these activities to sell or exchange.

In addition to implementing these statutory changes, the rules add a new license fee for breeders newly subject to the licensing requirement because they possess five to 10 intact adult female animals and are in the business of breeding them for direct or indirect sale or for exchange in return for consideration. The proposed rules also make minor changes to the responsibilities of license holders, and numerous changes that are non-substantive and update, correct, or clarify language, terminology, usage, grammar, punctuation, citations, numbering and lettering.

Chapter 802 requires the Department to impose on licensed dog or cat breeders the federal specifications for the humane handling, care, treatment, and transportation of dogs and cats in Title 9 of the Code of Federal Regulations (CFR). The new state legislation requires those breeders now subject to the requirement to hold a license to do so by January 1, 2024. Given the limited time available to adopt updated rules to implement the statutory changes, the Department decided to forego substantial rule amendments unrelated to the changes brought by S.B. 876 in this rulemaking. Many CFR requirements have changed and the Department must implement those, so a substantive rulemaking will follow that more thoroughly updates the rules to match the CFR requirements, resolves other outstanding issues, and addresses comments and staff recommendations collected during the most recent four-year review of Chapter 91.

The proposed rules add a new authorization from the CFR to keep records for animals housed in a group in a single group record rather than requiring an individual record for each animal. Further, the proposed rules authorize the license holder to make corrective actions that fit the license holder’s budget and resources, as long as the actions achieve compliance, instead of having to make corrective actions in a manner recommended by TDLR. The proposed rules also authorize an applicant for an initial license to provide evidence to TDLR that deficiencies noted in a pre-license inspection have been corrected and the facility meets the requirements of the rules, rather than requiring the applicant to request and pay for another pre-license inspection.

Advisory Committee Recommendations

The proposed rules were presented to and discussed by the Licensed Breeder Advisory Committee at its meeting on September 1, 2023. The Advisory Committee made one change to remove some unnecessary wording in §91.22. The Advisory Committee voted and recommended that the proposed rules with that change be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §91.10 by adding a definition for "the Act," "licensee," and "representative," and correcting a citation and adding a reference to the CFR that was moved from §91.100. The definition of a "dog or cat breeder" is amended for consistency with the new statutory language. The provisions in the section are renumbered.

The proposed rules amend §91.20, Applicability, to update a citation.

The proposed rules amend §91.22, License Required, to clarify the license requirement and to provide the date by which those who are newly subject to the licensing requirement must be licensed.

The proposed rules amend §91.23, License Requirements, to update, clarify, and reorganize the section.

The proposed rules amend §91.24, License Renewal, to update and clarify language.

The proposed rules amend §91.27, 91.28, and 91.29 relating to notice to licensees and term of license, to remove outdated language that refers to registration.

The proposed rules amend §91.30, Exemptions, to add an exemption from the licensing requirement for dogs bred with the intent that they will be used primarily for breed or conformation shows. Existing exemptions are also expanded, and language is amended to match the new statutory provisions for exemptions. A cross-reference is updated.

The proposed rules amend §91.50, Inspections-Prelicense, to clarify that licensees need not request and pay for a second inspection to demonstrate that deficiencies have been corrected but may instead provide evidence of corrected deficiencies to the Department.

The proposed rules amend §91.51, Inspections-Prelicense Exemption, to update language.

The proposed rules amend §91.52, Inspections-Periodic, to update language and to provide that the Department may indicate recommended corrective actions for violations noted in an inspection report.

The proposed rules amend §91.53, Out-of-Cycle Inspections, to update language and to provide that the Department may indicate recommended corrective actions for violations noted in an inspection report.

The proposed rules amend §91.54, relating to corrective action following inspection, to clarify that licensees are not obligated to perform corrective actions recommended by the Department but may choose alternative corrective actions to achieve compliance.

The proposed rules amend §91.55, relating to the Department maintaining a directory of licensed breeders, to clarify language.

The proposed rules amend §91.57, relating to consumer information, to add provisions stemming from Occupations Code Chapter 51 regarding complaint-handling and immunity from liability for qualified persons who aid in Department investigations.

The proposed rules amend §91.58, relating to donations, to correct a term.

The proposed rules create new §§91.61-91.65 to update existing requirements and add standard provisions for advisory committee duties, membership, terms, vacancies, officers, and meetings.

The proposed rules repeal §91.65, Advisory Committee, to move, update, and standardize advisory committee requirements in new §§91.61 - 91.65.

The proposed rules amend §91.66, relating to inspector responsibilities, to update and correct language.

The proposed rules amend §91.73, relating to keeping a copy of the law and rules at each facility, to clarify the wording of the requirement.

The proposed rules amend §91.74, relating to contract provisions, to remove unnecessary language.

The proposed rules amend §91.76, relating to animal inventory, to update language.

The proposed rules amend §91.77, relating to animal records, to correct terminology and to implement a CFR change that allows routine husbandry records for a group of animals to be kept on a single record.

The proposed rules amend §91.80, Fees, to add license and license renewal fees for the new category of licensed breeders who possess for breeding and sale between five and ten intact female animals. Standard provisions relating to Department fees are also added and language is updated and corrected.

The proposed rules amend §§91.90, 91.91, and 91.92, relating to penalties and enforcement, to update and clarify language.

The proposed rules amend §91.100, relating to housing, to move a provision from this section to §91.10, Definitions, and to renumber the section.

The proposed rules amend §91.101, relating to indoor housing, to correct a term.

The proposed rules amend §91.102 and §91.103, relating to sheltered housing and outdoor housing, to clarify language.

The proposed rules amend §91.104, relating to primary enclosures, to clarify language and to renumber the provisions of the section.

The proposed rules amend §91.105, relating to compatible grouping, to clarify and renumber the provisions.

The proposed rules amend §91.107, related to feeding, to correct usage.

The proposed rules amend §91.112, relating to veterinary care, to add a citation and clarify the requirements.

The proposed rules amend §91.202, relating to primary enclosures for transport, to clarify language.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Mr. Couvillon has also determined that for each year of the first five years the proposed rules are in effect, there is no estimated loss in revenue to the state government, and no estimated increase or loss in revenue to local governments as a result of enforcing or administering the proposed rules. Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there will be an increase in revenue to the state due to an estimated 50 additional breeders who will need to become licensed because they possess between five and ten adult intact female animals and are in the business of breeding them to be sold directly or indirectly, or exchanged for consideration. The proposed yearly license fee for these breeders is $150; therefore, the increase in revenue to the state is expected to be $7,500 annually.

The proposed rules newly exempt from licensure any breeder who breeds dogs to be used primarily for breed or conformation shows. The proposed rules also expand the exemption for those who breed dogs primarily to be used for herding or other agricultural uses, hunting (tracking, chasing, pointing, flushing, or retrieving game), or competing in field trials, hunting tests, or similar organized performance events. These exemptions formerly applied only to dog breeders who bred these types of dogs for personal use. Therefore, the Department expects some of these types of breeders to forego licensing. This will result in a reduction in license and renewal fees of $300 or $500 annually for each licensed breeder who qualifies for the expanded exemptions. TDLR does not have information on how many current license holders would be exempted from licensure by the change to the statute and would therefore not be required to pay fees to the State. The resulting loss in revenue from these fees cannot be predicted at this time.

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 has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the health, safety and humane treatment of dogs and cats bred in licensed facilities, which benefits the customers who purchase these animals. The benefits that result from the regulation of dog and cat breeders will now extend to animals that are bred in facilities with a smaller number of adult intact females and to the customers who purchase from those facilities. The minimum requirements for care of the animals that are imposed by licensing will help to ensure healthy, safe conditions for the animals. The possible reduction in overall quantities of dogs or cats bred for sale is likely to result in reduced surplus animals and result in reduced costs for taxpayer-funded animal shelter and animal rescue entities.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSED RULES

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there will be additional costs to persons who are required to comply with the proposed rules. The breeders who will now be subject to licensure under the proposed rules will have a cost of $150 per year for an application fee. There could also be additional costs for any breeders who will have to make adjustments to parts of their facility that do not comply with the standards of care that Chapter 802 mandates, to come into compliance.

The proposed rules give license holders opportunities to reduce their costs by authorizing records for animals housed in groups to be kept in a group record rather than requiring an individual record for each animal; and authorizing the license holder to make corrective actions that fit the license holder’s budget and resources, as long as the actions achieve compliance, instead of having to make corrective actions in a manner recommended by TDLR that might not be economical for the license holder. The proposed rules also authorize an applicant for an initial license to provide evidence to TDLR that deficiencies noted in a pre-license inspection have been corrected and the facility meets the requirements of the rules, rather than requiring the applicant to request and pay for another pre-license inspection.

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. Although almost all breeders would probably qualify as small or micro-businesses, TDLR does not require information on employees or gross receipts from license applicants and does not have information on the number of small or micro-businesses breeding dogs or cats that will need to become licensed as a result of the statute change. Nor does TDLR have information to estimate accurately how many of the currently licensed breeders of any number of females will qualify for the new and expanded exemptions from licensing.

Occupations Code Chapter 802 requires dog or cat breeders in the business of breeding five or more females for sale or exchange to be licensed and requires them to comply with the federal regulations for dog or cat breeders in the CFR. There is very little imposed by the proposed rules that is over and above what the statute and the federal regulations require, or that increases any costs for breeders who are subject to the licensing requirements of the statute. The $150 annual license fee is modest and is not expected to have an adverse economic effect on any small or micro-business. The possession of a license and compliance with its attendant health and safety requirements is likely to enhance the salability of the animals produced by breeders newly required to obtain a license. Any marginal costs that might be attributable to the proposed rules will be minimal and will not have an adverse economic effect on any business. The proposed rules do give license holders opportunities to reduce their costs as explained in this preamble.

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

The proposed rules have a fiscal note that imposes a cost on regulated persons; however, the proposed rules fall under the exception for rules that are necessary to implement legislation unless the legislature specifically applies the one-for-one requirement. It has not; therefore, the agency is not required to take any further action under Government Code §2001.0045.

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 does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules require an increase 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.

7. The proposed rules increase 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

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 M. 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.

16 TAC §§91.10, 91.20, 91.22 - 91.24, 91.27 - 91.30, 91.50 -91.55, 91.57, 91.58, 91.61 - 91.66, 91.73, 91.74, 91.76, 91.77, 91.80, 91.90 - 91.92, 91.100 - 91.105, 91.107, 91.112, 91.202

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 802, 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 rules are those set forth in Texas Occupations Code, Chapters 51 and 802. No other statutes, articles, or codes are affected by the proposed rules. The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is Senate Bill 876, 88th Legislature, Regular Session (2023).

§91.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. A word or term not defined in this chapter shall have the meaning set forth in 9 C.F.R. Chapter I, Subchapter A, Part 1.

(1) Act--Texas Occupations Code, Chapter 802, relating to Dog or Cat Breeders.

(2) [~~(1)~~] Adult animal--An animal six months of age or older.

(3) [~~(2)~~] Animal--A dog or a cat.

(4) [~~(3)~~] Cat--A mammal that is wholly or partly of the species Felis domesticus.

(5) [~~(4)~~] Commission--The Texas Commission of Licensing and Regulation under Texas Occupations Code, Chapter 51.

(6) [~~(5)~~] Controlling person--An individual who:

(A) is a partner, manager, director, officer, or member of a dog or cat breeder;

(B) possesses the authority to set policy or direct management of a dog or cat breeder; or

(7) [~~(6)~~] Department--The Texas Department of Licensing and Regulation under Texas Occupations Code, Chapter 51.

(8) [~~(7)~~] Dog--A mammal that is wholly or partly of the species Canis familiaris.

(9) [~~(8)~~] Dog or cat breeder--A person who possesses five [11] or more adult intact female animals and is engaged in the business of breeding those animals for direct or indirect sale or for exchange in return for consideration [~~and who sells or exchanges, or offers to sell or exchange, not fewer than 20 animals in a calendar year~~].

(10) [~~(9)~~] Facility--The premises used by a dog or cat breeder for keeping or breeding animals. The term includes all buildings, property, and confinement areas used to conduct the breeding business.

(11) [~~(10)~~] Federal regulations--The specifications for the humane handling, care, treatment, and transportation of dogs and cats set forth in 9 C.F.R. Chapter I, Subchapter A, Part 3, Subpart A [~~9 C.F.R. Part 3, Subpart A~~].

(12) [~~(11)~~] Intact female animal--A female animal that has not been spayed and is capable of reproduction.

(13) [~~(12)~~] Kitten--A cat less than six months old.

(14) [~~(13)~~] Licensed breeder--A dog or cat breeder who holds a license issued under this chapter.

(15) Licensee--A licensed breeder.

(16) [~~(14)~~] Positive Physical Contact--Petting, stroking, or other touching, which is beneficial to the well-being of the animal.

(17) [~~(15)~~] Possess--To have custody of or control over.

(18) [~~(16)~~] Primary enclosure--Any structure used to restrict an animal to a limited amount of space. The term includes a room, pen, run, cage, or compartment.

(19) [~~(17)~~] Puppy--A dog less than six months old.

(20) Representative--A person authorized or delegated by a licensed breeder to speak, act, or otherwise stand for or on behalf of the licensee.

(21) [~~(18)~~] Veterinarian--A veterinarian in good standing and licensed to practice veterinary medicine in this state.

(22) [~~(19)~~] Wire or Wire Mesh--Any metal, alloy or other material which allows a free air flow through the material when used [as], or constructed to be used, as flooring for any structure required by this chapter. The strands of metal, alloy or other material must be completely encased in thick bonded vinyl, plastic or rubberized coating designed so the animal's paws are unable to extend through, or become caught in the openings.

§91.20.Applicability.

(a) This chapter does not affect the applicability of any other law, rule, order, ordinance, or other legal requirement of the federal government, this state, or a political subdivision of this state.

(b) This chapter does not prevent a municipality or county from prohibiting or further regulating by order or ordinance the possession, breeding, or selling of dogs or cats.

(c) This chapter does not apply to an animal regulated under the Texas Racing Act (Occupations Code, Title 13, Subtitle A-1) [~~(Article 179e, Vernon's Texas Civil Statutes)~~].

§91.22.License Required[~~--Dog or Cat Breeder~~].

(a) A person who possesses five or more adult intact female animals and is engaged in the business of breeding those animals for direct or indirect sale or for exchange in return for consideration must be licensed as a dog or cat breeder under the Act and this chapter.

(b) [~~(a)~~] A person required to obtain a breeder's license under this chapter may not act as, offer to act as, or represent that the person is a dog or cat breeder in this state unless the person holds a license under this chapter for each facility that the person owns or operates in this state.

(d) [~~(c)~~] For purposes of this section, each noncontiguous premise or physical location is a separate facility and must obtain a license under this chapter; unless the noncontiguous premises or physical locations are within 300 feet of each other.

(e) A dog or cat breeder who possesses five or more but fewer than 11 adult intact female animals and is engaged in the business of breeding those animals for direct or indirect sale or for exchange in return for consideration is not required to hold a license to act as a dog or cat breeder before January 1, 2024.

§91.23.License Requirements[~~--Dog or Cat Breeder~~].

(a) Applicants for a license must submit all required information in a manner and form prescribed by the department. [~~To be eligible for a Dog or Cat Breeders license, except as provided for in subsection (b), an applicant must:~~]

(b) Applicants must submit the following:

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

(2) [~~provide~~] a valid state sales tax identification number;

(3) [~~provide~~] the name and address of each controlling person; and

(4) the fee required under §91.80 [~~successfully pass a criminal background check for each applicant and controlling person~~];

(d) In addition to the requirements in subsections (b) and (c), each applicant must:

(1) [~~(5)~~] successfully pass a facility prelicense inspection conducted by a department-approved inspector; or

(2) provide a current Class A animal dealers license issued under the Animal Welfare Act (7 U.S.C. Section 2131 et seq.) and [~~together with~~] a statement certifying that the facility meets the requirements of this chapter; or [~~and~~]

~~[(6) pay the fee required under §91.80.]~~

(3) satisfy the following requirements:

[~~(b)~~] [~~A person may also be eligible for a Dog or Cat Breeders license if that person~~]

(A) successfully pass [~~passes~~] an administrative facility prelicense inspection conducted by a department-approved inspector by satisfying the requirements in subsections (b) and (c); [~~subsection (a)(1) - (4),~~] and

(B) provide a current Class B animal dealers license issued under the Animal Welfare Act (7 U.S.C. Section 2131 et seq.) and [~~together with~~]:

(i) [~~(1)~~] color photographs at least 4 x 6 inches of each primary enclosure located on the premises or location for licensure;

(ii) [~~(2)~~] a statement certifying the number and breed of animals housed in the primary enclosures photographed in clause (i) [~~subparagraph (A);~~] and

(iii) [~~(3)~~] a statement certifying that the facility meets the requirements of this chapter.

§91.24.License Renewal. [~~Requirements--Dog or Cat Breeders License Renewal.~~]

(a) To renew a breeder license, a person [~~an applicant~~] must:

(1) submit a completed application in a manner prescribed by the department [~~on a department-approved form~~];

(2) provide a valid state sales tax identification number;

(3) provide the name and address of each controlling person;

(4) successfully pass a criminal background check for each applicant and [or] controlling person;

(5) be in compliance with all commission or department orders [~~Commission Orders~~] directed to the applicant or a controlling person; and

(6) pay the fee required under §91.80.

(b) To renew and maintain continuous licensure, the renewal requirements under this section must be completed before [~~prior to~~] the expiration of the license. A late renewal means[--] the person [~~licensee~~] will have an unlicensed period from the expiration date of the expired license to the issuance date of the renewed license. During the unlicensed period, a person may not perform any functions of a breeder that require [~~requires~~] a license under this chapter.

(c) Non-receipt of a license renewal notice from the department does not exempt a person from any requirements of this chapter.

§91.27.License [~~or Registration~~]--Notice of Proposed Denial, Opportunity to Comply.

(a) If the department recommends denial of an application for a license [~~or registration~~] under this chapter, the department shall send written notice of the decision to the applicant at the address shown on the application by certified mail, return receipt requested.

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

§91.28.Department Notifications to Licensee [~~or Registrant~~].

Unless otherwise provided for by statute or this chapter, the department may send notice of department proposed actions and decisions through email sent to the last email address designated by the licensee [~~or registrant~~].

§91.29.License [~~or Registration--~~]Term.

A license [~~or registration~~] issued by the department is valid only for the person named on the license [~~or registration~~]; applies only to the single facility, agency, department or person named on the license [~~or registration~~]; is nontransferable; and is valid for 12 months from the date of issuance.

§91.30.Exemptions.

(a) This section applies only to a dog bred with the intent that it be used primarily for:

(1) herding livestock, as defined by §1.003, Agriculture Code, or other agricultural uses;

(2) hunting, including tracking, chasing, pointing, flushing, or retrieving game; or

(3) competing in field trials, hunting tests, breed or conformation shows, or similar organized performance events.

(b) This chapter does not apply to a person to the extent the person breeds dogs described by subsection (a) for a [~~personal~~] use described by subsection (a). A person described by this subsection may conduct direct or indirect sales or exchanges in return for consideration of dogs described by subsection (a).

(c) Notwithstanding subsection (b), a person described by subsection (b) may be subject to the requirements of this chapter based on the person's activities with respect to animals other than dogs that are bred and used as described by this section.

(d) Dogs described by subsection (a) may not be counted for purposes of determining the number of adult intact female animals possessed by a person as described by §91.10(9) [~~§91.10(8)~~].

§91.50.Inspections--Prelicense.

(a) Except as provided by §91.51, the department shall inspect a facility before a license is issued for the facility.

(b) The department may not issue a license to a breeder until the department receives a prelicense inspection report from the inspector in a format approved by the department certifying that the facility meets the prelicense inspection requirements for a license.

(c) An applicant whose facility does not meet the requirements of this chapter as revealed by a prelicense inspection may, after correcting deficiencies noted in the inspection report, request another prelicense inspection by paying the required fee to the department. Alternatively, the applicant may provide evidence, in a manner prescribed by the department, that deficiencies have been corrected and that the applicant’s facility meets the requirements of this chapter.

§91.51.Inspections--Prelicense Exemption.

The department may not require a prelicense inspection of a facility for an applicant who:

(1) holds a current Class A animal dealers license issued under the Animal Welfare Act (7 U.S.C. Section 2131 et seq.); and

(2) submits to the department:

(A) a copy of the license; and

(B) in a manner [~~on a form~~] prescribed by the department, [~~provide~~] a statement certifying that the facility meets the requirements of the Act [~~this chapter~~] and [~~rules adopted under~~] this chapter.

§91.52.Inspections--Periodic.

(a) Each facility of a licensed breeder shall be inspected at least once in every 18-month period.

(b) The inspection must be conducted during the facility's normal business hours, and the licensed breeder or [a] representative [~~of the licensed breeder~~] must be given a reasonable opportunity to be present during the inspection.

(c) If necessary to adequately perform the inspection, the department inspector may determine it is appropriate to not provide advance notice to the licensed breeder or [a] representative [~~of the licensed breeder~~] before arriving at the facility. The licensed breeder or its representative shall, on request of an inspector, assist the inspector in performing the inspection.

(d) An inspector may not enter or access any portion of a private residence of a licensed breeder except as necessary to access animals or other property relevant to the care of the animals.

(e) The inspector may request that relevant documents or records be provided for inspection.

(f) The inspector shall submit an inspection report to the department not later than the 10th day after the date of the inspection on a form prescribed by the department and provide a copy of the report to the licensed breeder or its representative.

(g) Based on the results of the periodic inspection, a licensed facility may be moved to an out-of-cycle inspection provided for in §91.53. The department will notify the owner of the facility, in writing, if the facility becomes subject to out-of-cycle inspection and the scheduled frequency of inspections.

(h) The licensee[~~, manager,~~] or representative must, upon request, make available to the inspector all records and other documents required by this chapter.

(i) On completion of the periodic inspection and while at the facility, the inspector shall leave with the licensee or representative [~~of licensee~~] a preliminary report in a manner prescribed [~~on a form approved~~] by the department listing the items not meeting the requirements of this chapter. The preliminary report required by this section is in addition to the completed report required by this chapter and does not affect the validity of the completed detailed report.

(j) The inspection report will identify violations that must be corrected by the licensee. The report may [~~will~~ ] also indicate the corrective actions required to address the violations.

(k) The department may assess administrative penalties and/or administrative sanctions for violations disclosed during inspections under this chapter.

§91.53.Out-of-Cycle Inspections.

(a) Out-of-cycle inspections are those required in addition to periodic inspections required under §91.52 for licensed facilities to ensure compliance with this chapter.

(b) To determine which licensee will be subject to out-of-cycle inspections, the department has established criteria and frequencies for inspections.

(d) Facilities subject to out-of-cycle inspections may be scheduled for inspection based on the following risk criteria and inspection frequency:

Figure: 16 TAC §91.53(d) (No change.)

(e) At the time of inspection of a licensee, the licensee or [~~owner, manager, or their~~] representative must, upon request, make available to the inspector, records, notices and other documents required by this chapter.

(f) On completion of the out-of-cycle inspection and while at the facility, the inspector shall leave with the licensee or representative [~~of licensee~~] a preliminary report on a form approved by the department listing the items not meeting the requirements of this chapter. The preliminary report required by this section is in addition to the completed report required by this chapter and does not affect the validity of the completed detailed report.

(g) The inspection report will identify violations that must be corrected by the licensee. The report may [~~will~~ ] also indicate recommended [~~the~~] corrective actions required to address the violations. Additionally, the department may assess administrative penalties and/or administrative sanctions for violations identified during the out-of-cycle inspection.

(h) Facilities on a Tier 1 out-of-cycle inspection schedule that have two inspections with no violations or Tier 2 out-of-cycle inspection schedule that have three inspections with no violations may be moved to a less frequent out-of-cycle inspection schedule or returned to a periodic schedule of inspections. The department will notify the licensee, in writing, if there is a change in the facility's out-of-cycle schedule or if the facility is returned to a periodic inspection schedule.

§91.54.Corrective Actions Following Periodic or Out-of-Cycle Inspections.

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

(1) the department may [~~shall~~] provide the licensee a list of recommendations for [~~required~~ ] corrective actions; and

(2) the licensee shall complete all corrective actions and provide written verification of the corrective actions to the department according to the following schedule:

(A) violations affecting an animal's health shall be corrected immediately; or

(B) after consultation with the licensee or [~~licensee's~~ ] representative, violations related to housing facilities must be corrected within a reasonable time as determined by the inspector based on a totality of the circumstances.

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

(b) The department may assess administrative penalties and/or administrative sanctions for violations or for failure to timely complete corrective actions or timely provide written verification of the completion of corrections to the department.

(c) Licensees are not obligated to perform the corrective actions recommended by the department and may choose alternative corrective actions to achieve compliance.

§91.55.Responsibilities of the Department--Directory.

(a) The department shall maintain a directory of dog or cat [~~licensed~~] breeders licensed [~~registered~~ ] under this chapter.

(b) The department shall make the directory available to the public.

§91.57.Responsibilities of the Department--Consumer Interest Information.

(a) The department shall prepare information of consumer interest describing:

(1) the functions performed by the department under this chapter; and

(2) the rights of a consumer affected by this chapter.

(b) The information must describe the procedure by which a consumer complaint is filed with and resolved by the department.

(d) The commission has adopted rules related to handling complaints pursuant to Texas Occupations Code §51.252. These rules are located at 16 Texas Administrative Code Chapter 60, Subchapter H.

(e) A qualified person may assist the department in the review and investigation of complaints and will be immune from liability related to these activities pursuant to Texas Occupations Code §51.252.

§91.58.Responsibilities of the Department--Donations, Disbursements and Reporting.

(a) The executive director shall develop procedures for the acceptance, conversion, and deposit of all donations offered by individuals, clubs, organizations, and all other sources.

(b) Conversion of donations of real or personal property into United States currency shall be accomplished by the executive director or designee.

(c) Donations received shall be deposited in a dedicated training and enforcement account in the general revenue fund to the credit of general revenue subject to exemption from the application of §403.095, Government Code.

(d) The executive director shall approve in writing all disbursements from the training and information account.

(e) A disbursement under this section may include but is not limited to promotional costs to enhance the fund.

(f) All donations may be used for these purposes unless otherwise specifically prohibited by the donor.

(g) All disbursements from the accounts will be by check signed by the executive director.

(h) The commission will be furnished a quarterly report detailing all deposits into and expenditures from the fund.

§91.61.Establishment of Licensed Breeder Advisory Committee; Duties.

(a) The commission establishes the Licensed Breeder Advisory Committee as required by the Act.

(b) The advisory committee shall advise the commission and make recommendations on matters related to the administration and enforcement of the Act, including licensing fees and standards.

§91.62.Advisory Committee--Membership.

(a) The advisory committee consists of nine members appointed by the presiding officer of the commission with the approval of the commission as follows:

(1) two members who are licensed breeders;

(2) two members who are veterinarians;

(3) two members who represent animal welfare organizations, each of which has an office based in this state;

(4) two members who represent the public; and

(5) one member who is an animal control officer as defined in §829.001, Health and Safety Code.

(b) Except for the members described by paragraph (a)(1), a person may not be a member of the advisory committee if the person or a member of the person's household:

(1) is required to be licensed under this chapter;

(2) is an officer, employee, or paid consultant of an entity required to be licensed under this chapter;

(3) owns or controls, either directly or indirectly, more than a 10 percent interest in an entity required to be licensed under this chapter; or

(4) is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of an entity required to be licensed under this chapter.

(c) The presiding officer of the commission may remove from the advisory committee a member who is ineligible for membership under subsection (b).

§91.63.Advisory Committee--Terms; Vacancies.

(a) Members of the advisory committee serve staggered four-year terms. The terms of four or five members expire on February 1 of each odd-numbered year.

(b) If a vacancy occurs during a member's term, the presiding officer of the commission, with the approval of the commission, shall appoint a replacement member to serve for the remainder of the unexpired term.

(c) A member of the advisory committee may be removed from the advisory committee pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

§91.64.Advisory Committee--Officers.

(a) The presiding officer of the commission shall designate one member of the advisory committee to serve as presiding officer of the advisory committee for a two-year term.

(b) A member may serve more than one term as presiding officer of the advisory committee.

(c) The presiding officer of the advisory committee shall preside at all meetings at which the presiding officer is in attendance. The presiding officer of the advisory committee may vote on any matter before the advisory committee.

§91.65.Advisory Committee--Meetings.

(a) The advisory committee shall meet at the call of the presiding officer of the commission or the executive director.

(b) A quorum of the advisory committee is necessary to conduct official business. A quorum is five members.

(d) A member may not receive compensation for service on the advisory committee. Subject to the department's budget and any limitation provided by the General Appropriations Act, a committee member may receive reimbursement for the actual and necessary expenses incurred while performing advisory committee duties.

§91.66.Responsibilities of Inspectors--Inspections, Investigations, and Reports of Animal Cruelty.

(a) Inspections.

(1) An inspector must conduct inspections during the facility's normal business hours, and the licensed breeder or [a] representative [~~of the licensed breeder~~] must be given a reasonable opportunity to be present during the inspection.

(2) If an inspector determines it is not appropriate to provide advance notice to the licensed breeder or [a] representative [~~of the licensed breeder~~] before arriving at the facility, the inspection report must describe the reasons supporting the determination.

(3) In conducting an inspection under this section, an inspector may not enter or access any portion of a private residence of a licensed breeder except as necessary to access animals or other property relevant to the care of the animals.

(4) An inspector may request that relevant documents or records be provided for inspection.

(5) Inspectors must submit inspection reports to the department not later than the 10th day after the date of the inspection in a manner [~~on a form and manners~~] prescribed by the department and provide a copy of the report to the licensed breeder or its representative.

(6) An inspector may not perform an inspection authorized by §91.52 and §91.53 unless assigned or requested by the department.

(7) Inspections must be conducted in accordance with:

(A) the training procedures and protocols approved by the department; or

(B) if good cause exists [~~exist~~] to deviate from the established procedures and protocols or if no procedure or protocol exists [~~exist~~] for the issues presented during the inspection, the inspection report must contain an explanation of the issues presented and procedures followed.

(b) Investigations. On receipt of a complaint alleging a violation of this chapter or a rule adopted under this chapter, the department shall investigate the alleged violation.

(c) Reports of Animal Cruelty. A person conducting an inspection or an investigation under this chapter shall notify the appropriate local law enforcement agency not later than 24 hours after discovering evidence of animal cruelty or neglect during the inspection or investigation.

§91.73.Responsibilities of Licensee--Onsite Availability of Law and Rules.

A licensed breeder must maintain at each of the breeder's facilities a current printed [~~and current~~] copy or an electronic copy, in a manner prescribed by the department, of Texas Occupations Code, Chapter 802 and rules adopted by the commission regulating licensed breeders[~~; or electronically in a manner prescribed by the department~~].

§91.74.Responsibilities of Licensee--Mandatory Contract Provisions.

A licensed breeder must include in each contract for the sale or transfer of an animal:

(1) the license number; and

(2) the following statement: "Dog and cat breeders are regulated by the Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, 1-800-803-9202, 512-463-6599, www.tdlr.texas.gov." [~~or a similar statement adopted by commission rule that includes the department’s name, mailing address, telephone numbers, and Internet website address.~~]

§91.76.Responsibilities of Licensee--Annual Inventory.

(a) Not later than February 1 of each year, a licensed breeder shall submit to the department, in a manner [~~on a form~~] prescribed by the department, an accounting of all animals held at the facility at any time during the preceding calendar year.

(b) The licensed breeder shall keep copies of the items described by subsection (a) at the licensed breeder's facility and shall make them available on request to the department inspector.

(1) keep separate records for each facility; and

(2) submit a separate accounting of animals for each facility.

§91.77.Responsibilities of Licensee--Animal Records Content, Availability, and Retention Period.

(a) A licensed breeder shall maintain, at the licensed facility where the animal is kept, a [~~separate~~] record for each animal in the breeder's facility documenting the animal's care.

(1) Records required by this section must be maintained for at least two (2) years and must include:

(A) the date on which the animal enters the facility or operation;

(B) the person from whom the animal was purchased or obtained, including the name, address and phone number of such person, and license or registration number if applicable;

(C) a description of each animal, including the species, color, breed, sex, date of birth (if not known, the approximate age) and weight;

(D) any tattoo, microchip, or other identification number carried by or appearing on the animal;

(E) for breeding females:

(i) breeding dates;

(ii) whelping or queening dates;

(iii) number of puppies or kittens per litter;

(iv) sire or tom for each litter; and

(F) the disposition of each animal with date of disposition.

(2) Records required by this section are in addition to records related to preventive [~~preventative~~] and therapeutic veterinary care provided each animal.

(3) The licensed breeder shall make the animal records available on request to the department inspector.

(b) Records required by this chapter shall be kept at the licensed facility where the animal was last housed for two years from the date of the last entry in the records or the date the animal is no longer housed at the facility, whichever is later.

(c) When an animal subject to this chapter is transferred from one licensed facility to another licensed facility, a copy of records related to that animal and required by this chapter must be transferred contemporaneously with the transferred animal.

(d) Records documenting routine husbandry, such as annual examinations, vaccinations, preventive medical procedures, or treatments or procedures performed on all animals in a group may be kept on a single record.

(1) Requirements to document in the medical records maintained for each animal or in the records related to each animal may include the single group record in addition to or instead of documenting in an individual record maintained for an animal.

(2) Requirements for approval or documentation by a veterinarian mean written documentation in the animal’s group record, individual record, or both unless otherwise specified.

(3) The records related to an animal include all individual and group records related to that animal.

§91.80.Fees.

(a) Application Fees

(1) Dog or Cat Breeder License, 5-10 Intact Female Animals

(A) Original Application--$150

(B) Renewal--$150

(2) [~~(1)~~] Dog or Cat Breeder License, 11-25 Intact Female Animals [~~(11-25 Intact Female Animals)~~]

(A) Original Application--$300

(B) Renewal--$300

(3) [~~(2)~~] Dog or Cat Breeder License, 26 or more Intact Female Animals [~~(26 or more Intact Female Animals)~~]

(A) Original Application--$500

(B) Renewal--$500

(b) Out-of-Cycle Inspections--$150

(d) Late renewal fees for licenses under this chapter are provided under §60.83 [~~of this title (relating to Late Renewal Fees)~~].

(e) The fee for a dishonored/returned check or payment is the fee prescribed under §60.82.

(f) The fee for a criminal history evaluation letter is the fee prescribed under §60.42.

(g) [~~(e)~~] All fees paid to the department are nonrefundable [~~except as provided for by commission rules or statute~~].

§91.90.Administrative Sanctions and Penalties.

A person that violates any provision of the Texas Occupations Code, Chapters 51 and [~~Chapter~~] 802, this chapter [~~a rule~~], or a rule or an order of the executive director or commission will be subject to administrative sanctions and/or administrative penalties under Texas Occupations Code, Chapters 51 and 802, and applicable agency rules.

§91.91.Enforcement Authority.

The enforcement authority granted under Texas Occupations Code, Chapters 51 and 802 [~~and any associated rules~~] may be used to enforce the Act [~~Texas Occupations Code, Chapter 802~~] and this chapter.

§91.92.License Denial, Revocation, and Suspension.

(a) The department shall deny, refuse to renew, suspend, or revoke a license in accordance with Occupations Code, Chapters 51, 53, and 802.

(b) The department may deny, refuse to renew, revoke, or suspend a license held by a person who:

(1) fails to meet the requirements of the Act or [~~Occupations Code, Chapter 802 and~~] this chapter;

(2) has had a similar license issued by a federal, state, or local authority denied, revoked, or suspended;

(3) has falsified any material information requested by the department;

(4) has failed to meet a standard adopted by rule under this chapter; or

(5) has failed to comply with any corrective action required under an inspection report in the time provided by the report.

§91.100.Standards of Care--Housing Generally.

[~~A word or term not defined in this chapter shall have the meaning set forth in 9 C.F.R. Part 1.~~]

(a) [~~(1)~~] Structure; construction. Housing facilities for dogs and cats must be designed and constructed so that they are structurally sound. They must be kept in good repair, and they must protect the animals from injury, contain the animals securely, and restrict other animals from entering.

(b) [~~(2)~~] Condition and site. Housing facilities and areas used for storing animal food or bedding must be free of any accumulation of trash, waste material, junk, weeds, and other discarded materials. Animal areas inside of housing facilities must be kept neat and free of clutter, including equipment, furniture, and stored material, but may contain materials actually used and necessary for cleaning the area, and fixtures or equipment necessary for proper husbandry practices. Housing facilities must be physically separated from any other business. If a housing facility is located on the same premises as another business, it must be physically separated from the other business so that animals the size of dogs, skunks, and raccoons are prevented from entering it.

(1) [~~(A)~~] General requirements. The surfaces of housing facilities--including houses, dens, and other furniture-type fixtures and objects within the facility--must be constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn or soiled. Interior surfaces and any surfaces that come in contact with dogs or cats must:

(A) [~~(i)~~] be free of excessive rust that prevents the required cleaning and sanitization, or that affects the structural strength of the surface; and

(B) [~~(ii)~~] be free of jagged edges or sharp points that might injure the animals.

(2) [~~(B)~~] Maintenance and replacement of surfaces. All surfaces must be maintained on a regular basis. Surfaces of housing facilities--including houses, dens, and other furniture-type fixtures and objects within the facility--that cannot be readily cleaned and sanitized, must be replaced when worn or soiled.

(3) [~~(C)~~] Cleaning. Hard surfaces with which the dogs or cats come in contact must be spot-cleaned daily and sanitized in accordance with §91.109(b) to prevent accumulation of excreta and reduce disease hazards. Floors made of dirt, absorbent bedding, sand, concrete, gravel, grass, or other similar material must be raked or spot-cleaned with sufficient frequency to ensure all animals the freedom to avoid contact with excreta. Contaminated material must be replaced whenever this raking and spot-cleaning is not sufficient to prevent or eliminate odors, insects, pests, or vermin infestation. All other surfaces of housing facilities must be cleaned and sanitized when necessary to satisfy generally accepted husbandry standards and practices. Sanitization may be done using any of the methods provided in §91.109(b)(3) for primary enclosures.

(d) [~~(4)~~] Water and electric power. The housing facility must have reliable electric power adequate for heating, cooling, ventilation, and lighting, and for carrying out other husbandry requirements in accordance with the regulations in this chapter. The housing facility must provide adequate running potable water for the dogs' and cats' drinking needs, for cleaning, and for carrying out other husbandry requirements.

(e) [~~(5)~~] Storage. Supplies of food and bedding must be stored in a manner that protects the supplies from spoilage, contamination, and vermin infestation. The supplies must be stored off the floor and away from the walls, to allow cleaning underneath and around the supplies. Foods requiring refrigeration must be stored accordingly, and all food must be stored in a manner that prevents contamination and deterioration of its nutritive value. All open supplies of food and bedding must be kept in leakproof containers with tightly fitting lids to prevent contamination and spoilage. Only food and bedding that is currently being used may be kept in the animal areas. Substances that are toxic to the dogs or cats but are required for normal husbandry practices must not be stored in food storage and preparation areas, but may be stored in cabinets in the animal areas.

(f) [~~(6)~~] Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal, and disposal of animal and food wastes, bedding, debris, garbage, water, other fluids and wastes, and dead animals, in a manner that minimizes contamination and disease risks. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and animals stay dry. Disposal and drainage systems must minimize vermin and pest infestation, insects, odors, and disease hazards. All drains must be properly constructed, installed, and maintained. If closed drainage systems are used, they must be equipped with traps and prevent the backflow of gases and the backup of sewage onto the floor. If the facility uses sump or settlement ponds, or other similar systems for drainage and animal waste disposal, the system must be located far enough away from the animal area of the housing facility to prevent odors, diseases, pests, and vermin infestation. Standing puddles of water in animal enclosures must be drained or mopped up so that the animals stay dry. Trash containers in housing facilities and in food storage and food preparation areas must be leakproof and must have tightly fitted lids on them at all times. Dead animals, animal parts, and animal waste must not be kept in food storage or food preparation areas, food freezers, food refrigerators, or animal areas.

(g) [~~(7)~~] Washrooms and sinks. Washing facilities such as washrooms, basins, sinks, or showers must be provided for animal caretakers and must be readily accessible.

§91.101.Standards of Care--Indoor Housing Facilities.

(a) Heating, cooling, and temperature. Indoor housing facilities for dogs and cats must be sufficiently heated and cooled when necessary to protect the dogs and cats from temperature or humidity extremes and to provide for their health and well-being. When dogs or cats are present, the ambient temperature in the facility must not fall below 50° F (10° C) for dogs and cats not acclimated to lower temperatures, for those breeds that cannot tolerate lower temperatures without stress or discomfort (such as short-haired breeds), and for sick, aged, young, or infirm dogs and cats, except as approved by a veterinarian. Dry bedding, solid resting boards, or other methods of conserving body heat must be provided when temperatures are below 50° F (10° C). The ambient temperature must not fall below 45° F (7.2° C) for more than 2 consecutive hours when dogs or cats are present, and must not rise above 85° F (29.5° C) for more than 2 consecutive hours when dogs or cats are present. The preceding requirements are in addition to, not in place of, all other requirements pertaining to climatic conditions [~~condition~~].

(b) Ventilation. Indoor housing facilities for dogs and cats must be sufficiently ventilated at all times when dogs or cats are present to provide for their health and well-being, and to minimize odors, drafts, ammonia levels, and moisture condensation. Ventilation must be provided by windows, vents, fans, or air conditioning. Auxiliary ventilation, such as fans, blowers, or air conditioning must be provided when the ambient temperature is 85° F (29.5° C) or higher. The relative humidity must be maintained at a level that ensures the health and well-being of the dogs or cats housed therein, in accordance with the directions of a veterinarian and generally accepted professional and husbandry practices, as documented in the medical records maintained for each animal.

(c) Lighting. Indoor housing facilities for dogs and cats must be lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs and cats. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout animal facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning, adequate inspection of animals, and for the well-being of the animals. Primary enclosures must be placed so as to protect the dogs and cats from excessive light.

(d) Interior surfaces. The floors and walls of indoor housing facilities, and any other surfaces in contact with the animals, must be impervious to moisture. The ceilings of indoor housing facilities must be impervious to moisture or be replaceable (e.g., a suspended ceiling with replaceable panels).

§91.102.Standards of Care--Sheltered Housing Facilities.

(a) Heating, cooling, and temperature. The sheltered part of sheltered housing facilities for dogs and cats must be sufficiently heated and cooled when necessary to protect the dogs and cats from temperature or humidity extremes and to provide for their health and well-being. The ambient temperature in the sheltered part of the facility must not fall below 50° F (10° C) for dogs and cats not acclimated to lower temperatures, for those breeds that cannot tolerate lower temperatures without stress and discomfort (such as short-haired breeds), and for sick, aged, young, or infirm dogs or cats, except as approved by a veterinarian. Dry bedding, solid resting boards, or other methods of conserving body heat must be provided when temperatures are below 50° F (10° C). The ambient temperature must not fall below 45° F (7.2° C) for more than 2 consecutive hours when dogs or cats are present, and must not rise above 85° F (29.5° C) for more than 2 consecutive hours when dogs or cats are present. The preceding requirements are in addition to, not in place of, all other requirements pertaining to climatic conditions.

(b) Ventilation. The enclosed or sheltered part of sheltered housing facilities for dogs and cats must be sufficiently ventilated when dogs or cats are present to provide for their health and well-being, and to minimize odors, drafts, ammonia levels, and moisture condensation. Ventilation must be provided by windows, doors, vents, fans, or air conditioning. Auxiliary ventilation, such as fans, blowers, or air-conditioning, must be provided when the ambient temperature is 85° F (29.5° C) or higher.

(c) Lighting. Sheltered housing facilities for dogs and cats must be lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs and cats. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout animal facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning, adequate inspection of animals, and for the well-being of the animals. Primary enclosures must be placed so as to protect the dogs and cats from excessive light.

(d) Shelter from the elements. Dogs and cats must be provided with adequate shelter from the elements at all times to protect their health and well-being. The shelter structures must be large enough to allow each animal to sit, stand, and lie in a normal manner without its body being in contact with at least one side of the shelter walls [~~in a normal manner~~] and to turn about freely.

(e) Surfaces.

(1) The following areas in sheltered housing facilities must be impervious to moisture:

(A) indoor floor areas in contact with the animals, which may consist of flooring that is wire or wire mesh or slatted material;

(B) outdoor floor areas in contact with the animals, when the floor areas are not exposed to the direct sun, or are made of a hard material such as wire, wood, metal, or concrete; and

(2) Outside floor areas in contact with the animals and exposed to the direct sun may consist of compacted earth, absorbent bedding, sand, concrete, gravel, or grass.

§91.103.Standards of Care--Outdoor Housing Facilities.

(a) Restrictions.

(1) The following categories of dogs or cats must not be kept in outdoor facilities, unless that practice is specifically approved by a veterinarian and documented by a veterinarian in the medical records related to each dog or cat to which the exemption applies:

(A) dogs or cats that are not acclimated to the temperatures prevalent in the area or region where they are maintained;

(B) breeds of dogs or cats that cannot tolerate the prevalent temperatures of the area without stress or discomfort (such as short-haired breeds in cold climates); and

(2) When their acclimation status is unknown, dogs and cats must not be kept in outdoor facilities when the temperature is less than 50° F (10° C).

(b) Shelter from the elements. Outdoor facilities for dogs or cats must include one or more shelter structures that are accessible to each animal in each outdoor facility, and that are large enough to allow each animal in the shelter structure to sit, stand, and lie in a normal manner without its body being in contact with at least one side of the shelter walls [~~in a normal manner,~~] and to turn about freely. In addition to the shelter structures, one or more separate outside areas of shade must be provided, large enough to contain all the animals at one time and protect them from the direct rays of the sun. Shelters in outdoor facilities for dogs or cats must contain a roof, four sides, and a floor, and must:

(1) provide the dogs and cats with adequate protection and shelter from the cold and heat;

(2) provide the dogs and cats with protection from the direct rays of the sun and the direct effect of wind, rain, or snow;

(3) be provided with a wind break and rain break at the entrance; and

(4) contain clean, dry, bedding material if the ambient temperature is below 50° F (10° C). Additional clean, dry bedding is required when the temperature is 35° F (1.7° C) or lower.

(c) Construction. Building surfaces in contact with animals in outdoor housing facilities must be impervious to moisture. Metal barrels, cars, refrigerators or freezers, and the like must not be used as shelter structures. The floors of outdoor housing facilities may be of compacted earth, absorbent bedding, sand, concrete, gravel, or grass, and must be replaced if there are any prevalent odors, diseases, insects, pests, or vermin. All surfaces must be maintained on a regular basis. Surfaces of outdoor housing facilities--including houses, dens, etc.--that cannot be readily cleaned and sanitized, must be replaced when worn or soiled.

§91.104.Standards of Care--Primary Enclosure.

(a) Primary enclosures for dogs and cats must meet the following minimum requirements:

(1) General requirements.

[~~(A)~~] Primary enclosures must be designed and constructed of suitable materials so that they are structurally sound. The primary enclosures must be kept in good repair and shall not be placed on top of another primary enclosure unless an impervious barrier designed to prevent the transfer of fluid or animal waste separates the two primary enclosures.

(2) [~~(B)~~] Construction and maintenance. Primary enclosures must be constructed and maintained so that they:

(A) [~~(i)~~] have no sharp points or edges that could injure the dogs and cats;

(B) [~~(ii)~~] protect the dogs and cats from injury;

(D) [~~(iv)~~] keep other animals from entering the enclosure;

(E) [~~(v)~~] enable the dogs and cats to remain dry and clean;

(F) [~~(vi)~~] provide shelter and protection from extreme temperatures and weather conditions that may be uncomfortable or hazardous to all the dogs and cats;

(G) [~~(vii)~~] provide sufficient shade to shelter all the dogs and cats housed in the primary enclosure at one time;

(H) [~~(viii)~~] provide all the dogs and cats with easy and convenient access to clean food and water;

(I) [~~(ix)~~] enable all surfaces in contact with the dogs and cats to be readily cleaned and sanitized in accordance with §91.109(b), or be replaceable when worn or soiled;

(J) [~~(x)~~] have floors that are constructed in a manner that protects the dogs' and cats' feet and legs from injury, and that, if of mesh or slatted construction, do not allow the dogs' and cats' feet to pass through any openings in the floor;

(K) [~~(xi)~~] provide sufficient space to allow each dog and cat to turn about freely, to sit, stand, [~~stand, sit,~~] and lie in a comfortable, normal position without its body being in contact with at least one side of the enclosure [~~shelter~~] walls [~~in a comfortable, normal position,~~] and to walk in a normal manner; and

(L) [~~(xii)~~] if the suspended floor of a primary enclosure is constructed of metal strands, the strands must either be greater than 1/8 of an inch in diameter (9 gauge) or coated with a material such as plastic or fiberglass. The suspended floor of any primary enclosure must be strong enough so that the floor does not sag or bend between the structural supports.

(b) [~~(2)~~] Additional requirements for cats.

(1) [~~(A)~~] Space. Each cat, including weaned kittens, that is housed in any primary enclosure must be provided minimum vertical space and floor space in accordance with this chapter.

(2) [~~(B)~~] Each primary enclosure housing cats must be at least 24 in. high (60.96 cm).

(3) [~~(C)~~] Cats up to and including 8.8 lbs (4 kg) must be provided with at least 3.0 ft² (0.28 m²).

(4) [~~(D)~~] Cats over 8.8 lbs (4 kg) must be provided with at least 4.0 ft² (0.37 m²).

(5) [~~(E)~~] Each queen with nursing kittens must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices. If the additional amount of floor space for each nursing kitten is equivalent to less than 5 percent of the minimum requirement for the queen, such housing must be approved by a veterinarian.

(6) [~~(F)~~] The minimum floor space required by this section is exclusive of any food or water pans. The litter pan may be considered part of the floor space if properly cleaned and sanitized.

(7) [~~(G)~~] Compatibility. All cats housed in the same primary enclosure must be compatible, as determined by observation. Not more than 12 adult nonconditioned cats may be housed in the same primary enclosure. Queens in heat may not be housed in the same primary enclosure with sexually mature males, except for breeding. Except when maintained in breeding colonies, queens with litters may not be housed in the same primary enclosure with other adult cats, and kittens under 6 months of age may not be housed in the same primary enclosure with adult cats, other than the dam or foster dam. Cats with a vicious or aggressive disposition must be housed separately.

(8) [~~(H)~~] Litter. In all primary enclosures, a receptacle containing sufficient clean litter must be provided to contain excreta and body wastes.

(9) [~~(I)~~] Resting surfaces. Each primary enclosure housing cats must contain a resting surface or surfaces that, in the aggregate, are large enough to hold all the occupants of the primary enclosure at the same time comfortably. The resting surfaces must be elevated, impervious to moisture, and be able to be easily cleaned and sanitized, or easily replaced when soiled or worn. Low resting surfaces that do not allow the space under them to be comfortably occupied by the animal will be counted as part of the floor space.

(1) [~~(A)~~] Space.

(A) [~~(i)~~] Each dog housed in a primary enclosure (including weaned puppies) must be provided a minimum amount of floor space, calculated as follows: Find the mathematical square of the sum of the length of the dog in inches (measured from the tip of its nose to the base of its tail) plus 6 inches; then divide the product by 144. The calculation is: (length of dog in inches + 6) x (length of dog in inches + 6) = required floor space in square inches. Required floor space in inches/144 = required floor space in square feet.

(B) [~~(ii)~~] Each bitch with nursing puppies must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices as determined by a veterinarian. If the additional amount of floor space for each nursing puppy is less than 5 percent of the minimum requirement for the bitch, such housing must be approved by a veterinarian and documented in the medical records related to each dog.

(C) [~~(iii)~~] The interior height of a primary enclosure must be at least 6 inches higher than the head of the tallest dog in the enclosure when it is in a normal standing position.

(2) [~~(B)~~] Compatibility. All dogs housed in the same primary enclosure must be compatible, as determined by observation. Not more than 12 adult nonconditioned dogs may be housed in the same primary enclosure. Bitches in heat may not be housed in the same primary enclosure with sexually mature males, except for breeding. Except when maintained in breeding colonies, bitches with litters may not be housed in the same primary enclosure with other adult dogs, and puppies under 6 months of age may not be housed in the same primary enclosure with adult dogs, other than the dam or foster dam. Dogs with a vicious or aggressive disposition must be housed separately.

(3) [~~(C)~~] Prohibited means of primary enclosure. Permanent tethering of dogs is prohibited for use as primary enclosure.

(4) [~~(D)~~] Prohibited stacking of primary enclosure. Primary enclosures may not be stacked above three vertical levels.

§91.105.Standards of Care--Compatible Grouping.

(a) Dogs and cats that are housed in the same primary enclosure must be compatible[~~, with the following restrictions~~].

(b) [~~(1)~~] Females [~~females~~] in heat (estrus) may not be housed in the same primary enclosure with males, except for breeding purposes.[;]

(c) [~~(2)~~] Any [~~any~~] dog or cat exhibiting a vicious or overly aggressive disposition must be housed separately.[;]

(d) [~~(3)~~] Puppies [~~puppies~~] or kittens 6 months of age or less may not be housed in the same primary enclosure with adult dogs or cats other than their dams or foster dams, except when permanently maintained in breeding colonies.[;]

(e) [~~(4)~~] Dogs [~~dogs~~] or cats may not be housed in the same primary enclosure with any other species of animals, unless they are compatible.[~~; and~~]

(f) [~~(5)~~] Dogs [~~dogs~~] and cats that have or are suspected of having a contagious disease must be isolated from healthy animals in the colony, as directed by a veterinarian. When an entire group or room of dogs and cats is known to have or believed to be exposed to an infectious agent, the group may be kept intact during the process of diagnosis, treatment, and control.

§91.107.Standards of Care--Feeding.

(a) Dogs and cats must be fed at least once each day, except as otherwise might be required to provide adequate veterinary care. The food must be uncontaminated, wholesome, palatable, and of sufficient quantity and nutritive value to maintain the normal condition and weight of the animal. The diet must be appropriate for the individual animal's age and condition.

(b) Food receptacles must be used for dogs and cats, must be readily accessible to all dogs and cats, and must be located so as to minimize contamination by excreta and pests, and be protected from rain, sleet and snow. Feeding pans must either be made of a durable material that can be easily cleaned and sanitized or be disposable. If the food receptacles are not disposable, they must be kept clean and must be sanitized in accordance with §91.109(b). Sanitization is achieved by using one of the methods described in §91.109(b)(3). If the food receptacles are disposable, they must be discarded after one use. Self-feeders may be used for the feeding of dry food. If self-feeders are used, they must be kept clean and must be sanitized in accordance with §91.109(b). Measures must be taken to ensure that there is no molding, deterioration, or [~~and~~] caking of feed.

§91.112.Standards of Care--Veterinary Care.

(a) Annual examination. A licensed breeder shall have each animal used for breeding examined by a veterinarian at least once in every twelve month period. The annual examination required by this section must be conducted in accordance with practices established under the Veterinary Licensing Act, Occupations Code Chapter 801, and documented by a veterinarian in the medical records related to each animal.

(b) Euthanasia and surgical procedures. Only a veterinarian shall be allowed to euthanize an animal or perform a surgical birth.

(c) Routine and preventive [~~preventative~~] care. A licensed breeder shall develop and maintain at each of the breeder's facilities a written health care management protocol as required by this section that is approved by a veterinarian and that addresses routine and preventive [~~preventative~~ ] healthcare for each animal in the facility.

(1) The breeder shall ensure that the protocol is followed, and that routine and preventive healthcare is provided to each animal in the facility and that each animal receives [~~received~~] appropriate care and treatment for any injury, disease, or illness that may affect the animal's health or well-being.

(2) The written health care management protocol required by this section must contain all health care records required by this chapter including all exemptions authorized by this chapter and approved by a veterinarian.

(3) On transfer or sale of the animal, a copy of the written health care management protocol required by this section must be transferred with the animal and the original records retained by the licensee.

(d) Breeding cycles. A licensed breeder shall provide breeding females adequate rest between breeding cycles as recommended by a veterinarian based on the breed, age, and health of the individual breeding female and documented by a veterinarian in the medical records related to each animal.

§91.202.Transportation Standards--Primary Enclosure Used to Transport Live Dogs and Cats.

Licensees must not transport or deliver for transport in commerce a dog or cat unless the following requirements are met:

(1) Construction of primary enclosures. The dog or cat must be contained in a primary enclosure such as a compartment, transport cage, carton, or crate. Primary enclosures used to transport dogs and cats must be constructed so that:

(A) The primary enclosure is strong enough to contain the dogs and cats securely and comfortably and to withstand the normal rigors of transportation;

(B) The interior of the primary enclosure has no sharp points or edges and no protrusions that could injure the animal contained in it;

(C) The dog or cat is at all times securely contained within the enclosure and cannot put any part of its body outside the enclosure in a way that could result in injury to itself, to handlers, or to persons or animals nearby;

(D) The dog or cat can be easily and quickly removed from the enclosure in an emergency;

(E) Unless the enclosure is permanently affixed to the conveyance, adequate devices such as handles or handholds are provided on its exterior, and enable the enclosure to be lifted without tilting it, and ensure that anyone handling the enclosure will not come into physical contact with the animal contained inside;

(F) Unless the enclosure is permanently affixed to the conveyance, it is clearly marked on top and on one or more sides with the words "Live Animals," in letters at least 1 inch (2.5 cm.) high, and with arrows or other markings to indicate the correct upright position of the primary enclosure;

(G) Any material, treatment, paint, preservative, or other chemical used in or on the enclosure is nontoxic to the animal and not harmful to the health or well-being of the animal;

(H) Proper ventilation is provided to the animal in accordance with paragraph (3); and

(I) The primary enclosure has a solid, leak-proof bottom or a removable, leak-proof collection tray under a slatted or mesh floor that prevents seepage of waste products, such as excreta and body fluids, outside of the enclosure. If a slatted or mesh floor is used in the enclosure, it must be designed and constructed so that the animal cannot put any part of its body between the slats or through the holes in the mesh. Unless the dogs and cats are on raised slatted floors or raised floors made of mesh, the primary enclosure must contain enough previously unused litter to absorb and cover excreta. The litter must be of a suitably absorbent material that is safe and nontoxic to the dogs and cats.

(2) Cleaning of primary enclosures. A primary enclosure used to hold or transport dogs or cats in commerce must be cleaned and sanitized before each use in accordance with the methods provided in §91.109(b)(3). If the dogs or cats are in transit for more than 24 hours, the enclosures must be cleaned and any litter replaced, or other methods, such as moving the animals to another enclosure, must be utilized to prevent the soiling of the dogs or cats by body wastes. If it becomes necessary to remove the dog or cat from the enclosure in order to clean, or to move the dog or cat to another enclosure, this procedure must be completed in a way that safeguards the dog or cat from injury and prevents escape.

(3) Ventilation.

(A) Unless the primary enclosure is permanently affixed to the conveyance, there must be:

(i) Ventilation openings located on two opposing walls of the primary enclosure and the openings must be at least 16 percent of the surface area of each such wall, and the total combined surface area of the ventilation openings must be at least 14 percent of the total combined surface area of all the walls of the primary enclosure; or

(ii) Ventilation openings on three walls of the primary enclosure, and the openings on each of the two opposing walls must be at least 8 percent of the total surface area of the two walls, and the ventilation openings on the third wall of the primary enclosure must be at least 50 percent of the total surface area of that wall, and the total combined surface area of the ventilation openings must be at least 14 percent of the total combined surface area of all the walls of the primary enclosure; or

(iii) Ventilation openings located on all four walls of the primary enclosure and the ventilation openings on each of the four walls must be at least 8 percent of the total surface area of each such wall, and the total combined surface area of the openings must be at least 14 percent of total combined surface area of all the walls of the primary enclosure; and

(iv) At least one-third of the ventilation area must be located on the upper half of the primary enclosure.

(B) Unless the primary enclosure is permanently affixed to the conveyance, projecting rims or similar devices must be located on the exterior of each enclosure wall having a ventilation opening, in order to prevent obstruction of the openings. The projecting rims or similar devices must be large enough to provide a minimum air circulation space of 0.75 in. (1.9 cm) between the primary enclosure and anything the enclosure is placed against.

(C) If a primary enclosure is permanently affixed to the primary conveyance so that there is only a front ventilation opening for the enclosure, the primary enclosure must be affixed to the primary conveyance in such a way that the front ventilation opening cannot be blocked, and the front ventilation opening must open directly to an unobstructed aisle or passageway inside the conveyance. The ventilation opening must be at least 90 percent of the total area of the front wall of the enclosure, and must be covered with bars, wire mesh, or smooth expanded metal having air spaces.

(4) Compatibility.

(A) Live dogs or cats transported in the same primary enclosure must be of the same species and be maintained in compatible groups, except that dogs and cats that are private pets, are of comparable size, and are compatible, may be transported in the same primary enclosure.

(B) Puppies or kittens 6 months of age or less may not be transported in the same primary enclosure with adult dogs or cats other than their dams.

(C) Dogs or cats that are overly aggressive or exhibit a vicious disposition must be transported individually in a primary enclosure.

(D) Any female dog or cat in heat (estrus) may not be transported in the same primary enclosure with any male dog or cat.

(5) Space and placement.

(A) Primary enclosures used to transport live dogs and cats must be large enough to ensure that each animal contained in the primary enclosure has enough space to turn about normally while standing, to stand and sit erect, and to lie in a natural position.

(B) Primary enclosures used to transport dogs and cats must be positioned in the primary conveyance so as to provide protection from the elements.

(6) Transportation by air.

(A) No more than one live dog or cat, 6 months of age or older, may be transported in the same primary enclosure when shipped via air carrier.

(B) No more than one live puppy, 8 weeks to 6 months of age, and weighing over 20 lbs (9 kg), may be transported in a primary enclosure when shipped via air carrier.

(C) No more than two live puppies or kittens, 8 weeks to 6 months of age, that are of comparable size, and weighing 20 lbs (9 kg) or less each, may be transported in the same primary enclosure when shipped via air carrier.

(D) Weaned live puppies or kittens less than 8 weeks of age and of comparable size, or puppies or kittens that are less than 8 weeks of age that are littermates and are accompanied by their dam, may be transported in the same primary enclosure when shipped to research facilities, including federal research facilities.

(7) Transportation by surface vehicle or privately owned aircraft.

(A) No more than four live dogs or cats, 8 weeks of age or older, that are of comparable size, may be transported in the same primary enclosure when shipped by surface vehicle (including ground and water transportation) or privately owned aircraft, and only if all other requirements of this section are met.

(B) Weaned live puppies or kittens less than 8 weeks of age and of comparable size, or puppies or kittens that are less than 8 weeks of age that are littermates and are accompanied by their dam, may be transported in the same primary enclosure when shipped to research facilities, including federal research facilities, and only if all other requirements in this section are met.

(8) Accompanying documents and records. Shipping documents that must accompany shipments of dogs and cats may be held by the operator of the primary conveyance, for surface transportation only, or must be securely attached in a readily accessible manner to the outside of any primary enclosure that is part of the shipment, in a manner that allows them to be detached for examination and securely reattached, such as in a pocket or sleeve. Instructions for administration of drugs, medication, and other special care must be attached to each primary enclosure in a manner that makes them easy to notice, to detach for examination, and to reattach securely. Food and water instructions must be securely attached to the outside of the primary enclosure in a manner that makes them [it] easily noticed and read [~~legible~~].

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 8, 2023.

TRD-202303299

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

16 TAC §91.65

STATUTORY AUTHORITY

The proposed repeal is proposed under Texas Occupations Code, Chapters 51 and 802, 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 repeal are those set forth in Texas Occupations Code, Chapters 51 and 802. No other statutes, articles, or codes are affected by the proposed repeal.

§91.65.Advisory Committee.

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 8, 2023.

TRD-202303300

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

CHAPTER 98. MOTORCYCLE OPERATOR TRAINING AND SAFETY

16 TAC §§98.10, 98.20 - 98.24, 98.27, 98.50, 98.60, 98.65, 98.70, 98.71, 98.76, 98.80, 98.104, 98.108, 98.112, 98.116

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 98, §§98.10, 98.20 - 98.23, 98.27, 98.50, 98.60, 98.65, 98.70, 98.76, 98.80, 98.104, 98.108, 98.112, and 98.116; and new rules at §98.24 and §98.71, regarding the Motorcycle Operator Training and Safety program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 98, implement Texas Transportation Code, Chapter 662, Motorcycle Operator Training and Safety.

The proposed rules are necessary to implement Senate Bill (SB) 478, 88th Legislature, Regular Session (2023), which amends Chapter 662 by changing the requirements relating to instructor license eligibility and instructor training; creating the instructor training provider license; and altering the membership of the Motorcycle Safety Advisory Board. The proposed rules are also necessary to implement recommendations by the Advisory Board to remove unnecessary and burdensome requirements for motorcycle schools and instructors.

SB 478 changes the eligibility requirements for an instructor license by adding a requirement for the applicant to not have been convicted during the previous three years of two moving violations that resulted in an accident or three total moving violations; adding a requirement for the applicant to not have been convicted during the previous seven years of driving while intoxicated or certain similar offenses; and adding a requirement for the applicant to submit fingerprints for a national criminal history background check.

SB 478 changes the requirements relating to instructor training by replacing the existing requirement for the training to be administered by the Texas A&M Engineering Extension Service (TEEX) with a new requirement for the training to be conducted at any licensed motorcycle school by a licensed instructor training provider in accordance with Department rules and a course curriculum approved by the Department.

SB 478 creates the instructor training provider license and requires an applicant for the license to have held a motorcycle license for the previous two years, submit fingerprints for a national criminal history background check, and meet any additional requirement adopted by rule, including a fee for the issuance and renewal of the license. SB 478 also alters the membership of the advisory board by replacing the existing representative of TEEX with a member who holds an instructor training provider license.

The proposed rules implement SB 478 by making corresponding changes to the rules relating to definitions, instructor license eligibility, instructor training, audits, advisory board membership, fees, course requirements, and curriculum standards and by adding new rules relating to the eligibility for and responsibilities of an instructor training provider license.

The proposed rules implement recommendations by Department staff to ease reporting requirements for motorcycle schools and instructors by requiring them to report each injury, rather than each incident, and expedite reporting for serious injuries; to clarify how a motorcycle school may continue to operate through a change of ownership; and to remove unnecessary student admission requirements.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Motorcycle Safety Advisory Board at its meeting on August 31, 2023. The Advisory Board made changes to the proposed rules at §§98.21 - 98.24, 98.27, 98.50, and 98.70, as explained in the Section-By-Section Summary. The Advisory Board 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 amend §98.10, Definitions, by removing the definition for "incident" because the term will be obsolete when motorcycle schools and instructors are required to report each injury instead of each incident; amending the definition for "instructor" to provide consistency with its statutory definition; replacing the term "instructor preparation course" with the term "instructor training course" and amending its definition to provide consistency with its statutory definition; creating a definition for "instructor training provider" to provide consistency with its statutory definition; amending the definition of "motorcycle school" to provide consistency with its statutory definition; and removing the definition for "TEEX" to reflect the removal of statutory references to TEEX in Chapter 662.

The proposed rules amend §98.20, "Instructor--License Required", by updating terminology to provide consistency with the changes made by SB 478.

The proposed rules amend §98.21, "Instructor--License Eligibility", to provide consistency with the changes made by SB 478 to the instructor license eligibility requirements in Transportation Code §662.0062. The Advisory Board made a change to subsection (a)(3) and removed subsection (b) to allow applicants from outside the state to be eligible under the same rules that apply to applicants from within the state. The Advisory Board also removed subsection (a)(7), which includes requirements for first aid and CPR certification, because the Advisory Board determined the requirements were unnecessary and burdensome. The remaining provisions are relabeled accordingly.

The proposed rules amend §98.22 by changing the section title to "Instructor--Training Course" and updating terminology to provide consistency with the changes made by SB 478. The Advisory Board made a change to subsection (a) to limit the section's applicability to instructor training courses conducted in Texas, to allow for applicants who have taken an instructor training course outside of Texas. Changes are also made to cross-references in subsection (b) to provide consistency with the Advisory Board's changes to §98.21.

The proposed rules amend §98.23, "Instructor--License Term; Renewal", by adding new subsection (d) to provide the process for notifying an instructor when new fingerprints are necessary for license renewal. Changes were made to cross-references in subsection (c)(2) to provide consistency with the Advisory Board's changes to §98.21.

The proposed rules add new §98.24, "Instructor Training Provider--License", to prohibit an individual from offering or conducting an instructor training course without an instructor training provider license, to provide the eligibility requirements for an instructor training provider license, and to provide the license term for an instructor training provider license. Changes were made to cross-references in subsection (b)(2) to provide consistency with the Advisory Board's changes to §98.21.

The proposed rules amend §98.27, "Motorcycle School--License Term; Renewal". The Advisory Board made changes in subsection (c)(2) to remove the references to §98.26(4), (5), and (7), which consist of requirements to submit lists of property, motorcycles, and instructors, respectively. The Advisory Board determined that it is unnecessary and burdensome to require motorcycle schools to submit this information upon renewal.

The proposed rules amend §98.50, "Motorcycle School--Reporting Requirements", to require motorcycle schools to report each injury, rather than each incident, and require expedited reporting for injuries that require immediate medical attention beyond first aid. The Advisory Board made changes to subsection (a)(1) to require injuries that require medical attention beyond first aid to be reported within two business days following the end of each course, and to subsection (a)(2) to require any other injury to be reported within three business days following the end of each course.

The proposed rules amend §98.60, Audits, to allow for department audits of instructor training providers.

The proposed rules amend §98.65, Advisory Board Membership, to provide consistency with the changes made by SB 478 to the advisory board membership in Transportation Code §662.0037.

The proposed rules amend §98.70, "Instructor--Responsibilities", to require instructors to report to the motorcycle school each injury, rather than each incident. Changes were made to subsections (a)(3) and (a)(4) to provide consistency with the Advisory Board's changes to §98.21, and the remaining provisions were relabeled accordingly.

The proposed rules add new §98.71, "Instructor Training Provider--Responsibilities", to provide the responsibilities applicable to the holder of an instructor training provider license, including the reporting and records maintenance requirements for each instructor training course provided.

The proposed rules amend §98.76, "Motorcycle School--Change of Ownership", to provide clarity on the continued operation of a motorcycle school in the event of a change of its ownership.

The proposed rules amend §98.80, Fees, to provide the fees for the issuance or renewal of an instructor training provider license, the approval of an instructor training course, duplicate or replacement licenses, late renewals, dishonored payments, and criminal history evaluation letters.

The proposed rules amend §98.104, Student Admission Requirements, by removing the requirement for an individual to hold a driver license or have completed driver education to enroll in an entry-level course. This requirement is unnecessary because an entry-level course does not involve the operation of a motorcycle on a public roadway or require knowledge of traffic laws.

The proposed rules amend §98.108, Course Requirements, by updating terminology to provide consistency with the changes made by SB 478.

The proposed rules amend §98.112, "Curriculum Standards--Entry-Level Course", by updating terminology to provide consistency with the changes made by SB 478.

The proposed rules amend §98.116 by changing the section title to "Curriculum Standards--Instructor Training Course" to update terminology and by adding a requirement that the curriculum for an instructor training course must have an evaluation process to ensure an individual can competently teach all components of the entry-level course.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there will be an estimated increase in revenue to the state in the amount of approximately $300 each year as a result of fees paid by applicants for the issuance or renewal of instructor training provider licenses.

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 local 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 has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be the facilitation of an increase in the safety of motorcycle riders on Texas roadways. Trained riders are over 50% less likely to be involved in a motorcycle crash. By creating an instructor training provider license, which will allow for the training of more new instructors and make motorcycle safety training more accessible, motorcycle schools will be able to serve the needs of their customers and provide training in a timely manner in more areas of Texas. It has been found that many individuals currently experience long wait times to get into a motorcycle safety class due to instructor shortages, and often times choose to ride without training instead of waiting for a class. Those individuals are at a much higher risk of personal injury to themselves and others as well as damage to personal property. The Center for Disease Control estimates that motorcycle crashes in Texas cost $658 million in losses per year. Making motorcycle training more available can reduce this cost and save lives, and serve Texans as both a public benefit as well as an economic benefit. Additionally, the removal of different eligibility criteria for out-of-state applicants could allow more of those individuals to obtain instructor licenses and thereby provide more instructors in Texas to teach motorcycle operator safety.

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 will be additional costs to persons who are required to comply with the proposed rules. Any individual who applies for an instructor training provider license will pay a fee of $50 for the issuance of the license and a fee of $39.05 for submission of fingerprints for a national criminal history background check and will thereafter pay a fee of $50 every two years for renewal of the license. Instructor license applicants will no longer have to first obtain CPR certification, which could save applicants the cost of attending a CPR course.

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 have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government; however, the proposed rules fall under the exception for rules that are necessary to protect the health, safety, and welfare of the residents of this state under §2001.0045(c)(6) and the exception for rules that are necessary to implement legislation under §2001.0045(c)(9). Therefore, the agency is not required to take any further action under Government Code §2001.0045.

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 does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules require an increase in fees paid to the agency. The proposed rules require a fee for the issuance or renewal of an instructor training provider license.

5. The proposed rules create a new regulation. The proposed rules provide the regulations applicable to instructor training provider licenses and instructor training course approvals.

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rules expand an existing regulation by adding three new disqualifying crimes for an instructor license applicant and by authorizing department audits of instructor training providers. The proposed rules limit an existing regulation by narrowing the reporting requirement for motorcycle schools to report only injuries, instead of every incident, and removing the requirement for an individual who attends an entry-level motorcycle safety course to first hold a Class C driver license or learner license. The proposed rules repeal an existing regulation by removing the requirement for the instructor preparation course to be administered by TEEX, removing the requirement for an applicant for an instructor license to obtain a CPR certification, and removing different eligibility requirements for an out-of-state applicant for an instructor license.

7. The proposed rules increase the number of individuals subject to the rules' applicability. The proposed rules create an instructor training provider license and require instructor training courses to be delivered by a holder of the license.

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

TAKINGS IMPACT ASSESSMENT

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 Shamica Mason, 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 rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Transportation Code, Chapter 662, Motorcycle Operator Training and Safety.

The proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Transportation Code, Chapter 662. No other statutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is Senate Bill 616, 86th Legislature, Regular Session (2019) and Senate Bill 478, 88th Legislature, Regular Session (2023).

§98.10.Definitions.

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

(1) Advisory board--The Motorcycle Safety Advisory Board.

(2) Change of ownership--A change in the control of a motorcycle school. The control of a school is considered to have changed:

(A) in the case of ownership by an individual, when more than 50% of the school has been sold or transferred;

(B) in the case of ownership by a partnership or corporation, when more than 50% of the school, or of the owning partnership or corporation, has been sold or transferred; or

(C) when the board of directors, officers, shareholders, or similar governing body has been changed to such an extent as to significantly alter the management and control of the school.

(3) Commission--Texas Commission of Licensing and Regulation.

(4) Controlling person--An individual who:

(A) is a sole proprietor;

(B) is a general partner of a partnership;

(D) possesses direct or indirect control of at least 25 percent of the voting securities of a corporation;

(E) is the president, the secretary, or a director of a corporation; or

(F) possesses the authority to set policy or direct the management of a business entity.

(5) Department--Texas Department of Licensing and Regulation.

(6) Entry-level courses--Courses of instruction in motorcycle operation for novice or experienced motorcycle riders designed to meet the training requirement to obtain a Class M driver's license issued under Texas Transportation Code, Chapter 521.

~~[(7) Incident-- Any instance where any part of a motorcycle, other than the tires or side stand, touches the ground or another object.]~~

(7) [~~(8)~~] Instructor--An individual who holds a license issued [~~licensed~~] by the department that entitles the individual to provide instruction on [~~teach~~] motorcycle operation and safety as an employee of or under contract with a motorcycle school [~~operator training courses in Texas~~].

(8) [~~(9)~~] Instructor training [~~preparation~~] course--A course offered by an instructor training provider [~~designed~~] to prepare an individual for licensure as an instructor [~~to provide instruction in motorcycle operation~~].

(9) Instructor training provider--An individual who holds a license issued by the department that entitles the individual to offer and conduct instructor training courses for consideration.

(10) Motorcycle school--A person who holds a license issued by the department that entitles the person to offer and conduct courses on motorcycle operation and safety for consideration [~~An entity licensed by the department to provide motorcycle operator training courses in Texas~~].

(11) Offer--To do any of the following:

(A) make a written or oral proposal to perform;

(B) contract in writing or orally to perform; or

(12) Person--An individual or entity.

(13) Range--The area of a training site where on-cycle training is conducted.

~~[(14) TEEX--The Texas A&M Engineering Extension Service.]~~

(14) [~~(15)~~] Training site--A physical location, consisting of a classroom and range, where motorcycle operator training is conducted.

§98.20.Instructor--License Required.

(a) An individual may not offer or provide instruction in motorcycle operation to the public for consideration [~~or teach an instructor preparation course~~] unless the individual:

(1) holds an instructor license issued by the department;

(2) provides the instruction in accordance with a curriculum approved by the department; and

(3) provides the instruction as an employee of, or under contract with, a motorcycle school [~~or TEEX~~].

(b) An individual enrolled as a student in an instructor training [~~preparation~~] course approved by the department [~~administered by TEEX~~] does not violate this section by participating in activities conducted as part of the instructor training [~~preparation~~] course.

§98.21.Instructor--License Eligibility.

[~~(a)~~] To be eligible for an instructor license, an applicant must:

(1) be at least 18 years old;

(2) submit a completed application on a form prescribed by the department;

(3) have successfully completed a department-approved [an] instructor training [~~preparation~~] course [~~in accordance with §98.22~~];

(4) have held, continuously for the two years preceding the date of submitting the application, a valid driver's license that entitles the applicant to operate a motorcycle on a public road;

(5) not have been convicted during the preceding three years of:

(A) three or more moving violations described by Texas Transportation Code §542.304, or a comparable offense committed in another state, including violations that resulted in an accident; or

(B) two or more moving violations described by Texas Transportation Code §542.304, or a comparable offense committed in another state, that resulted in an accident;

(6) be a high school graduate or have obtained a general education development (GED) certificate, certificate of high school equivalency, or other credentials equivalent to a public high school degree;

[(7) possess current first aid and adult cardiopulmonary resuscitation (CPR) certification from a nationally recognized provider with training courses that require in-person attendance, provide hands-on skills practice, and meet or exceed the standards of the American Red Cross, the American Heart Association, or the National Highway Traffic Safety Administration;]

(7) [~~(8)~~] submit the fee required by §98.80;

(8) [~~(9)~~] undergo and successfully pass a criminal history background check, including submitting a complete and legible set of fingerprints on a form and manner prescribed by the department; and

(9) [~~(10)~~] not have been convicted during the preceding seven years of any of the following offenses or a comparable offense committed in another state:

(A) Texas Penal Code §49.04, Driving While Intoxicated;

(B) Texas Penal Code §49.045, Driving While Intoxicated with Child Passenger;

(D) Texas Penal Code §49.06, Boating While Intoxicated;

(E) Texas Penal Code §49.065, Assembling or Operating an Amusement Ride While Intoxicated;

(F) [~~(C)~~] Texas Penal Code §49.07, Intoxication Assault; or

(G) [~~(D)~~] Texas Penal Code §49.08, Intoxication Manslaughter.

[(b) Out-of-state applicants. The eligibility requirements in subsection (a)(3) and Texas Transportation Code §662.0062(a)(1) can alternatively be met by an applicant who has held, continuously for the previous year, authorization to provide instruction for a department-approved entry-level course, or its equivalent as determined by the department, by submitting to the department any information about the course requested by the department and:]

~~[(1) if the applicant is from a state or other jurisdiction that offers a motorcycle instructor license:]~~

~~[(A) an active motorcycle instructor license issued to the applicant by the state or other jurisdiction; and]~~

~~[(B) a document on official letterhead issued by the state or other jurisdiction stating that:]~~

~~[(i) the motorcycle instructor license has been active and in good standing continuously for the previous year; and]~~

~~[(ii) the applicant has taught both the classroom and range portions of the course at least six times; or]~~

~~[(2) if the applicant is from a state or other jurisdiction that does not offer a motorcycle instructor license:]~~

~~[(A) a certificate of completion of the instructor training required to teach the course issued by the administrator of the course; and]~~

~~[(B) a document on official letterhead issued by the administrator of the course stating that:]~~

~~[(i) the applicant's authorization to teach the course has been active and in good standing continuously for the previous year; and]~~

~~[(ii) the applicant has taught both the classroom and range portions of the course at least six times.]~~

§98.22.Instructor--Training [~~Instructor--Preparation~~] Course.

(a) An [~~The~~] instructor training [~~preparation~~] course conducted in Texas [~~required by §98.21(a)(3)~~] must be a training program on motorcycle operator training and safety instruction approved by the [~~executive director of the~~] department and conducted by an instructor training provider at a motorcycle school [~~administered by TEEX~~].

(b) To be eligible to enroll in an instructor training [~~preparation~~] course under this section, an individual must:

(1) meet the requirements of §98.21(4), (5), (6), and (9) [~~§98.21(a)(4), (5), (6), and (10)~~]; and

(2) not have a criminal history that will make the individual ineligible for an instructor license under §98.21(8) [~~§98.21(a)(9)~~].

(c) To determine whether an individual meets the requirement of subsection (b)(2), an individual may request a criminal history evaluation letter from the department, as provided by 16 T.A.C. §60.42, Criminal History Evaluation Letters.

§98.23.Instructor--License Term; Renewal.

(a) An instructor license is valid for two years after the date of issuance.

(b) Each licensee is responsible for renewing the license before the expiration date. Lack of receipt of a license renewal notice from the department will not excuse failure to file for renewal or late renewal.

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

(2) meet the requirements of §98.21(4), (5), (8), and (9) [~~§98.21(a)(4), (5), (7), (9), and (10)~~]; and

(3) submit the fee required under §98.80.

(d) The department will notify the license holder if the person needs to submit new fingerprints for the criminal history background check.

§98.24.Instructor Training Provider--License.

(a) An individual may not offer or conduct an instructor training course unless the individual holds an instructor training provider license issued by the department.

(b) To be eligible for the issuance or renewal of an instructor training provider license, an applicant must:

(1) submit a completed application on a form prescribed by the department;

(2) meet the requirements of §98.21(1), (4), (5), (6), (8), and (9);

(3) hold a current instructor license issued by the department;

(4) hold current certification to conduct a department-approved instructor training course issued by the course owner or administrator; and

(5) submit the fee required under §98.80.

§98.27.Motorcycle School--License Term; Renewal.

(a) A motorcycle school license is valid for two years after the date of issuance.

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

(2) meet the requirements of §98.26(2), (3), and (6) [~~(4), (5), (6), and (7)~~]; and

(3) submit the fee required under §98.80.

§98.50.Motorcycle School--Reporting Requirements.

(a) A motorcycle school must report each injury [~~incident~~] to the department [~~within three business days of the incident~~], in the form and manner prescribed by the department, within: [.]

(1) two business days following the end of each course for an injury that requires immediate medical attention beyond first aid; or

(2) three business days following the end of each course for any other injury.

(b) By the fifth business day following the end of each course, a motorcycle school must accurately report to the department, in the form and manner prescribed by the department, information relating to each student enrolled in the course. The report must include:

(1) each student's full legal name as shown on the student's driver's license, or other form of identification acceptable to the department;

(2) whether each student successfully completed the course; and

(3) all instructors who provided instruction for the course.

(1) the number and types of courses provided during the quarter;

(2) the number of persons who took each course during the quarter;

(3) the number of instructors available to provide training under the school's program during the quarter;

(4) information collected by surveying persons taking each course as to the length of any waiting period the person experienced before being able to enroll in the course; and

(5) the number of persons on a waiting list for a course at the end of the quarter.

§98.60.Audits.

The department may conduct unannounced audits, during reasonable business hours, to ensure [a] motorcycle schools, [~~school and its~~] instructors, and instructor training providers comply with the requirements of this chapter and Texas Transportation Code, Chapter 662.

§98.65.Advisory Board Membership.

The Motorcycle Safety Advisory Board consists of nine members appointed by the presiding officer of the commission, on approval of the commission, as follows:

(1) three members:

(A) each of whom must be an [~~a licensed~~] instructor or represent a [~~licensed~~] motorcycle school; and

(B) who must collectively represent the diversity in size and type of the motorcycle schools licensed under this chapter;

(2) one member who represents the motorcycle dealer retail industry;

(3) one representative of a law enforcement agency;

(4) one representative of the Texas A&M Transportation Institute;

(5) one member who is an instructor training provider [~~representative of the Texas A&M Engineering Extension Service~~]; and

(6) two public members who hold a valid Class M driver's license issued under Texas Transportation Code, Chapter 521.

§98.70.Instructor--Responsibilities.

(a) An instructor must:

(1) notify the department of any change in the instructor's address, phone number, or email address within 15 days from the date of the change;

(2) maintain a valid driver's license that entitles the license holder to operate a motorcycle on a public road;

(3) maintain a driving record that meets the requirements of §98.21(5) [~~§98.21(a)(5)~~];

~~[(4) maintain first aid and CPR certification that meets the requirements of §98.21(a)(7);]~~

(4) [~~(5)~~] act immediately to appropriately address the medical needs of any person injured at the training site and summon emergency medical services if necessary;

(5) [~~(6)~~] report each injury [~~incident~~] to the motorcycle school in a timely manner;

(6) [~~(7)~~] cooperate with all department audits and investigations and provide all requested documents;

(7) [~~(8)~~] before each course, inspect each motorcycle to be used on the range to ensure the motorcycle meets the requirements of §98.102;

(8) [~~(9)~~] ensure that each motorcycle provided by a student meets the insurance requirements of §98.40 before the motorcycle is used on the range;

(9) [~~(10)~~] provide instruction only in compliance with a curriculum approved by the department;

(10) [~~(11)~~] be capable of instructing the entire course and providing technically correct riding demonstrations;

(11) [~~(12)~~] comply with the student-to-instructor ratio requirements in §98.108;

(12) [~~(13)~~] supervise all students and personnel on the range;

(13) [~~(14)~~] wear the protective gear required by §98.108(e) whenever riding a motorcycle to, from, or during rider training activities;

(14) [~~(15)~~] ensure all students wear the protective gear required by §98.108(e) when participating in the on-cycle activities of the course; and

(15) [~~(16)~~] deal honestly with members of the public and the department.

(b) An instructor must not:

(1) instruct a student if either the instructor or student exhibits signs of impairment from the use of an alcoholic beverage, controlled substance, drug, or dangerous drug, as defined in Texas Penal Code §1.07; or

(2) complete, issue, or validate a certificate of course completion to a person who has not successfully completed the course.

§98.71.Instructor Training Provider--Responsibilities.

(a) An instructor training provider must:

(1) comply with the requirements for instructors in §98.70;

(2) maintain a current instructor license issued by the department;

(b) For each instructor training course provided, an instructor training provider must:

(1) by the fifth business day following the end of each course, report to the department, in the form and manner prescribed by the department, information relating to each trainee enrolled in the course, including:

(A) each trainee's full legal name as shown on the trainee's driver's license, or other form of identification acceptable to the department;

(B) whether each trainee successfully completed the course; and

(2) maintain, for three calendar years, records of instructor training courses conducted, including each individual who enrolled in the course and whether the individual successfully completed the course.

§98.76.Motorcycle School--Change of Ownership.

(a) A motorcycle school license is not transferable.

(b) If a motorcycle school has a change of ownership, the new owner must apply for a new motorcycle school license [~~within 30 days after the change of ownership~~]. The current license holder [~~motorcycle school~~] may continue to operate the motorcycle school while the department is processing the application.

§98.80.Fees.

(a) The fee for the issuance or renewal of an instructor license is $50.

(b) The fee for the issuance or renewal of a motorcycle school license is $100.

(d) The fee for the approval [~~renewal~~] of a motorcycle operation and safety course [~~school license~~] is $0 [~~$100~~].

(e) The fee for the approval of an instructor training course is $0.

(f) A duplicate/replacement fee for a license issued under this chapter is $25.

(g) Late renewal fees for licenses issued under this chapter are provided under §60.83 (relating to Late Renewal Fees).

(h) A dishonored/returned check or payment fee is the fee prescribed under §60.82 (relating to Dishonored Payment Fee).

(i) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 (relating to Criminal History Evaluation Letters).

§98.104.Student Admission Requirements.

(a) Entry-level courses are open to any individual who is at least 15 years old. [~~on the day the course begins and:~~]

~~[(1) has an unrestricted Class C, or higher, driver license;]~~

~~[(2) has a Class C learner license; or]~~

~~[(3) can present the proper driver education form verifying successful completion of the classroom portion phase of driver education.]~~

(b) Non-entry-level courses are open to any individual who holds a Class M driver's license or an equivalent out-of-state license.

(c) To be eligible for student admission to any course, an individual younger than 18 years of age must provide the motorcycle school with written consent, signed by the individual's parent or legal guardian, for the individual to participate as a student in the course and to receive medical treatment for any injury that may occur at the motorcycle school. The signature of the parent or legal guardian on the written consent must be notarized or provided in person at the training site.

(d) Prior to accepting payment from an individual for admission to an entry-level course, a motorcycle school must inform the individual in writing of:

(1) the school's policy regarding any attempts the school allows students to make to pass the knowledge examination, the riding skills test required for the course, and any associated fees; and

(2) the requirement that a student whose riding performance creates an unmanageable danger on the range, as determined by the instructor, must be removed from the course.

(e) A motorcycle school must inform each student in writing of the department's name, mailing address, telephone number, and website address for the purpose of directing complaints to the department.

(f) If registration is performed by telephone, the information required by subsection (d) must be provided to the individual before the payment becomes non-refundable.

§98.108.Course Requirements.

(a) All courses must be conducted in accordance with a department-approved curriculum.

(b) The student-to-instructor ratio for classroom instruction of a course may not exceed 36 students per instructor.

(c) The student-to-instructor ratio for range instruction may not exceed eight students per instructor, or a more restrictive ratio imposed by the approved curriculum.

(d) For two-wheeled motorcycle courses, a separate motorcycle must be available for each student. For three-wheeled motorcycle courses, no more than two students may share a motorcycle.

(e) All students and instructors must wear protective gear when participating in the on-cycle activities of the course. The minimum protective gear includes:

(1) a motorcycle helmet that meets the standards of the U.S. Department of Transportation;

(2) eye protection;

(3) over-the-ankle, sturdy footwear;

(4) a long-sleeved shirt or jacket;

(5) non-flare pants that cover the entire leg and are made from a material that is at least as sturdy as denim; and

(6) full-fingered gloves.

(f) No person shall be on the range during any phase of range instruction except:

(1) instructors who are providing instruction, assistance, or evaluation;

(2) students who are enrolled in the course being conducted;

(3) interpreters or other assistants providing services to accommodate a disability or other condition required by law to be accommodated; or

(4) range assistants who are:

(A) enrolled in an instructor training [~~preparation~~ ] course described in §98.22; or

(B) all of the following:

(i) at least 16 years old;

(ii) employed by or contracted with the motorcycle school; and

(iii) trained by the motorcycle school to provide non-instructional support.

(g) A range assistant may not provide any form of instruction or evaluation of students, but may provide non-instructional support, limited to:

(1) moving motorcycles;

(2) setting up, removing, or operating classroom equipment and materials;

(3) setting or removing cones or other objects for range exercises;

(4) performing on-site motorcycle maintenance; and

(5) conducting demonstrations of riding exercises under the supervision of an instructor, if allowed by the approved curriculum.

§98.112.Curriculum Standards--Entry-Level Course.

The curriculum for an entry-level course must:

(1) be determined by the department to meet the Model National Standards for Entry-Level Motorcycle Rider Training (August 2011) distributed by the U.S. Department of Transportation, National Highway Traffic Safety Administration, which the department adopts by reference;

(2) include a knowledge examination that is designed to ensure students comprehend important concepts covered in the curriculum;

(3) include a riding skills test that is designed to ensure students can perform the riding skills covered in the curriculum;

(4) be consistent with this chapter and Texas Transportation Code, Chapter 662; and

(5) be submitted in conjunction with an instructor training [~~preparation~~] course that meets the requirements of §98.116.

§98.116.Curriculum Standards--Instructor Training [~~Preparation~~] Course.

The curriculum for an instructor training [~~preparation~~ ] course must:

(1) prepare an individual to competently teach all components of an entry-level course approved by the department; [~~and~~]

(2) have an evaluation process to ensure the individual can competently teach all components of the entry-level course; and

(3) [~~(2)~~] be consistent with this chapter and Texas Transportation Code, Chapter 662.

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 11, 2023.

TRD-202303369

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

For further information, please call: (512) 463-7750

CHAPTER 111. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter A, §111.2; Subchapter U, §111.201; and Subchapter W, §111.220; and proposes a new rule at Subchapter A, §111.3, regarding the Speech-Language Pathologists and Audiologists program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 111, Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists, and Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department.

The proposed rules implement changes made to Texas Occupations Code, Chapter 401 by SB 2017, 88th Legislature, Regular Session (2023); implement changes made by the U.S. Food and Drug Administration (FDA) in its final rule regarding over-the-counter hearing aids and prescription hearing aids; and clarify the requirements regarding medical statements for sales of hearing instruments to individuals under 18 years of age.

Implementation of SB 2017 and the FDA Hearing Aid Rule

The proposed rules are necessary to implement the provisions of SB 2017, which changed Chapter 401 of the Occupations Code governing Speech-Language Pathologists and Audiologists, to address the new category of "over-the-counter hearing aids" established in federal law and rule.

In 2022, the FDA revised its federal rules, repealed prior rules, and adopted new rules for hearing instruments to include an "over-the-counter hearing aid" category of hearing instruments found in 21 CFR §800.30. The FDA Hearing Aid rule created a definition and framework for a new "over-the-counter hearing aid" category. The changes in the FDA Hearing Aid rule were designed to provide easier access to over-the-counter hearing aids by removing restrictions on the sale of those devices. To remain consistent with federal law, the state statutes and rules regulating the sale of hearing instruments required changes to reflect this new category and the new regulatory framework. The FDA Hearing Aid Rule may be found under Medical Devices; Ear, Nose, and Throat Devices; Establishing Over-the-Counter Hearing Aids, 87 Fed. Reg. 50698 (August 17, 2022) (later codified at 21 CFR Parts 800, 801, 808 and 874).

Since the definition of "hearing instrument" in Texas law would have included "over-the-counter hearing aids", S.B. 2017 changed Chapters 401 and 402 of the Occupations Code to reflect the changes in Federal law and to clarify the sale of "over-the-counter hearing aids" consistent with the FDA Hearing Aid Rule.

The proposed rules also make changes to reflect the FDA Hearing Aid Rule that repealed requirements related to certain medical waiver forms. To the extent that the Department has received prior comments during rule review or other rulemakings related to conformity of the Speech-Language Pathologists and Audiologists rules to the FDA rules, the Department has proposed changes to conform these rules to SB 2017 and the FDA Hearing Aid Rule.

Clarifying Requirements for Sales to Individuals under 18

The proposed rules amend the requirement to obtain a medical statement or waiver before the sale of a hearing instrument. The FDA ceased enforcement of the waiver requirement in 2017 and repealed that requirement as part of the FDA Hearing Aid Rule in 2022. The proposed rules require a written medical statement only when the client is under 18 years of age, as required in Texas Occupations Code §401.404. This ensures consistency with the repeal of the FDA waiver requirements and the requirements of Occupations Code §401.404.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Speech-Language Pathologists and Audiologists Advisory Board at its meeting on September 8, 2023. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The proposed rules amend §111.2, Definitions. The proposed rules amend definitions for "fitting and dispensing hearing instruments," "hearing instrument," "Sale or purchase" to be "sale"; create definitions for "hearing aid," and "Over-the-counter hearing aid"; and renumber the remaining definitions. These new definitions and revisions incorporate statutory changes made by SB 2017.

The proposed rules add new §111.3, Over-the-Counter Hearing Aids. This new rule incorporates the exemption language added to the statute by SB 2017.

New §111.3(a) clarifies that except as provided in §111.3, Chapter 111 does not apply to the activities related to over-the-counter hearing aids.

New §111.3(b) provides that a person is not required to obtain a license to perform activities described in subsection (a).

New §111.3(c) provides that a person may not use the term "licensed dispenser" or "licensed seller" in regard to the sale of over-the-counter hearing aids unless the person is licensed as an audiologist or audiologist intern under this chapter or as a hearing instrument fitter and dispenser under Chapter 112.

New §111.3(d) provides that supervision, prescription, order, involvement, or intervention of a licensee is not required for a consumer to access over-the counter hearing aids.

New §111.3(e) provides that a licensee may engage in the activities described in subsection (a) regarding over-the-counter hearing aids, but that those activities do not exempt a licensee from any applicable provision of Chapter 111 unrelated to the activities in § 111.3(a).

Subchapter U. Fitting and Dispensing of Hearing Instruments.

The proposed rules amend §111.201, General Practice Requirements of Audiologists and Interns in Audiology Who Fit and Dispense Hearing Instruments.

The proposed rules amend §111.201(1) to delete references to the repealed federal rules 21 CFR §801.420, Hearing aid devices; professional and patient labeling, and 21 CFR §801.421, Hearing aid devices; conditions for sale. The proposed rule references new federal rule 21 CFR §801.422, which addresses prescription hearing aids. The proposed rules reflect the changes made by the FDA Hearing Aid Rule.

The proposed rules amend §111.201(2) to change "insure" to "ensure."

The proposed rules amend §111.201(3) because that section incorporated the legal requirements of 21 CFR §801.421 and that section has been repealed. The FDA ceased enforcement of the waiver requirement in 2017 and subsequently repealed that requirement as part of the FDA Hearing Aid Rule in 2022. The proposed rules now reads to require a written statement of a medical evaluation in instances where the client is under 18 as required in Texas Occupations Code §401.404. The proposed rule clarifies that a written statement is not required for clients 18 years of age or older.

Subchapter W. Joint Rule Regarding the Sale of Hearing Instruments.

The proposed rules amend §111.220. Requirements Regarding the Sale of Hearing Instruments.

The proposed rule amends §111.220(b) and §111.220(b)(1) to clarify that the 30-day trial period referenced relates to a hearing instrument.

The proposed amendments remove §111.220(b)(6) because it incorporates a reference to waiver forms required by 21 CFR §801.421 and §111.201(3). Since 21 CFR §801.421 was repealed by the FDA Hearing Aid Rule and §111.201(3) is proposed for amendment, this paragraph is also being proposed for removal. The remaining paragraphs in this subsection are renumbered.

The proposed rules amend §111.220(d)(3) to require medical evaluations or waivers of evaluation to be maintained only if they are provided. This change also reflects the changes in §111.201(3). This change reflects the previously referenced repeal of waiver requirements in 21 CFR 801.421 and is made for consistency with proposed amendments to §112.140(c)(6).

Since §111.220 is a joint rule required by Texas Occupations Code §401.2021 and §402.1021 to be adopted by the Commission with the assistance of the Speech-Language Pathologists and Audiologists Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board, §111.220 will mirror the text of §112.140.

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. There is no impact to local government costs because local governments are not responsible for administering the state regulation of audiology under Occupations Code, Chapter 401. The proposed rules implement SB 2017 regarding the new FDA category of over-the-counter hearing aids, update definitions, and add clarifying language, but these changes do not impact program costs.

Mr. Couvillon also 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

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be implementation of SB 2017 regarding the new over-the-counter category of hearing aids created by the FDA. The FDA created the over-the-counter category of hearing aids to increase access to affordable hearing aids for individuals with mild to moderate hearing loss. The proposed rules will assist those individuals by making over-the-counter hearing aids easier to purchase. The proposed rules make it clear that a license is not required to sell over-the-counter hearing aids. However, if a licensee chooses to sell OTC hearing aids, they must continue to abide by applicable regulations for their license, such as Code of Ethics and Continuing Education requirements.

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. The proposed rules have no significant economic costs to persons that are licensees, businesses, or the general public in Texas. The rules do not impose additional fees upon licensees, nor do they create requirements that would cause licensees to expend funds for equipment, technology, staff, supplies, or infrastructure.

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

The Speech-Language Pathologists and Audiologists Program regulates individuals, many of which are small or micro-businesses. As of July 18, 2023, there are 1,610 Audiologists, 58 Audiology Interns and 55 Audiology Assistants licensed in Texas. It is unknown how many of these individuals or the entities that employ them fall within the definitions of a small or micro-business because data regarding the number of employees and gross annual sales is not collected by the agency. The proposed rule changes have no impact on the costs related to selling OTC hearing aids.

The proposed rules have no anticipated adverse economic effect on rural communities because the rule will not decrease the availability of audiology services in rural communities, nor will the rules increase the cost of audiology services in rural communities.

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

GOVERNMENT GROWTH IMPACT STATEMENT

1. The proposed rules create or eliminate a government program.

2. Implementation of the proposed rules do 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.

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

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rule repeals the requirement for an audiologist or audiologist intern to receive a written statement from a licensed physician regarding the medical evaluation of a client who is over 18 years of age.

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

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 Nuńez, 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.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §111.2, §111.3

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 401, 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 rules are those set forth in Texas Occupations Code, Chapters 51 and 401. No other statutes, articles, or codes are affected by the proposed rules.

§111.2.Definitions.

Unless the context clearly indicates otherwise, the following words and terms shall have the following meanings.

(1) ABA--The American Board of Audiology.

(2) Act--Texas Occupations Code, Chapter 401, relating to Speech-Language Pathologists and Audiologists.

(3) Acts--Texas Occupations Code, Chapter 401, relating to Speech-Language Pathologists and Audiologists; and Texas Occupations Code, Chapter 402, relating to Hearing Instrument Fitters and Dispensers.

(4) Advisory board--The Speech-Language Pathologists and Audiologists Advisory Board.

(5) ASHA--The American Speech-Language-Hearing Association.

(6) Assistant in audiology--An individual licensed under Texas Occupations Code §401.312 and §111.90 of this chapter and who provides audiological support services to clinical programs under the supervision of an audiologist licensed under the Act.

(7) Assistant in speech-language pathology--An individual licensed under Texas Occupations Code §401.312 and §111.60 of this chapter and who provides speech-language pathology support services under the supervision of a speech-language pathologist licensed under the Act.

(8) Audiologist--An individual who holds a license under Texas Occupations Code §401.302 and §401.304 to practice audiology.

(9) Audiology--The application of nonmedical principles, methods, and procedures for measurement, testing, appraisal, prediction, consultation, counseling, habilitation, rehabilitation, or instruction related to disorders of the auditory or vestibular systems for the purpose of providing or offering to provide services modifying communication disorders involving speech, language, or auditory or vestibular function or other aberrant behavior relating to hearing loss.

(10) Caseload--The number of clients served by the licensed speech-language pathologist or licensed speech-language pathology intern.

(11) Client--A consumer or proposed consumer of audiology or speech-language pathology services.

(12) Commission--The Texas Commission of Licensing and Regulation.

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

(14) Direct Supervision (Speech-Language Pathology and Audiology)--Real-time observation and guidance by the supervisor while a client contact or clinical activity or service is performed by the assistant or intern. Direct supervision may be performed in person or via tele-supervision as authorized and prescribed by this chapter.

(15) Ear specialist--A licensed physician who specializes in diseases of the ear and is medically trained to identify the symptoms of deafness in the context of the total health of the client, and is qualified by special training to diagnose and treat hearing loss. Such physicians are also known as otolaryngologists, otologists, neurotologists, otorhinolaryngologists, and ear, nose, and throat specialists.

(16) Executive director--The executive director of the department.

(17) Extended absence--More than two consecutive working days for any single continuing education experience.

(18) Extended recheck--Starting at 40 dB and going down by 10 dB until no response is obtained or until 20 dB is reached and then up by 5 dB until a response is obtained. The frequencies to be evaluated are 1,000, 2,000, and 4,000 hertz (Hz).

(19) Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes prescribing, ordering, or authorizing the use of hearing instruments, the making of impressions for earmolds to be used as a part of the hearing instruments, and providing any necessary postfitting counseling for the purpose of fitting and dispensing hearing instruments.

(20) Hearing aid--Any wearable device designed for, offered for the purpose of, or represented as aiding persons with or compensating for impaired hearing. The term includes hearing instruments and over-the-counter hearing aids.

(21) [~~(20)~~] Hearing instrument--A prescription hearing aid as that term is defined in 21 C.F.R. 800.30. [Any wearable instrument or device designed for, or represented as, aiding, improving or correcting defective human hearing. This includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.]

(22) [~~(21)~~] Hearing screening--A test administered with pass/fail results for the purpose of rapidly identifying those persons with possible hearing impairment which has the potential of interfering with communication.

(23) [~~(22)~~] In-person--The licensee is physically present with the client while a client contact or clinical activity or service is performed. In the case of supervision, the supervisor is physically present with the assistant or intern while a client contact or clinical activity or service is performed.

(24) [~~(23)~~] Indirect supervision (Speech-Language Pathology and Audiology)--The supervisor performs monitoring activities or provides guidance to the assistant or intern, either of which does not occur during actual client contact by the assistant or intern or while the assistant or intern is providing a clinical activity or service. Tele-supervision may be used for indirect supervision as authorized and prescribed under this chapter.

(25) [~~(24)~~] Intern in audiology--An individual licensed under Texas Occupations Code §401.311 and §111.80 of this chapter and who is supervised by an individual who holds an audiology license under Texas Occupations Code §401.302 and §401.304.

(26) [~~(25)~~] Intern in speech-language pathology--An individual licensed under Texas Occupations Code §401.311 and §111.40 of this chapter and who is supervised by an individual who holds a speech-language pathology license under Texas Occupations Code §401.302 and §401.304.

(27) [~~(26)~~] Intern Plan and Agreement of Supervision Form (for Interns in Speech-Language Pathology and Audiology)--An agreement between a supervisor and an intern in which the parties enter into a supervisory relationship and the supervisor agrees to assume responsibility for all services provided by the intern.

(28) Over-the-counter hearing aid--The term has the meaning assigned by 21 C.F.R. Section 800.30.

(29) [~~(27)~~] Provisional Licensee--An individual granted a provisional license under Texas Occupations Code §401.308.

(30) [~~(28)~~] Sale [~~or purchase~~]--The term includes a lease, rental, or any other purchase or exchange for value. The term does not include a sale at wholesale by a manufacturer to a person licensed under the Act or to a distributor for distribution and sale to a person licensed under the Act. [Includes the sale, lease or rental of a hearing instrument or augmentative communication device to a member of the consuming public who is a user or prospective user of a hearing instrument or augmentative communication device.]

(31) [~~(29)~~] Speech-language pathologist--An individual who holds a license under Texas Occupations Code §401.302 and §401.304, to practice speech-language pathology.

(32) [~~(30)~~] Speech-language pathology--The application of nonmedical principles, methods, and procedures for measurement, testing, evaluation, prediction, counseling, habilitation, rehabilitation, or instruction related to the development and disorders of communication, including speech, voice, language, oral pharyngeal function, or cognitive processes, for the purpose of evaluating, preventing, or modifying or offering to evaluate, prevent, or modify those disorders and conditions in an individual or a group.

(33) [~~(31)~~] Supervisor--An individual who holds a license under Texas Occupations Code §401.302 and §401.304 and whom the department has approved to oversee the services provided by the assigned assistant and/or intern. The term "supervisor" and "department-approved supervisor" have the same meaning as used throughout this chapter.

(34) [~~(32)~~] Supervisory Responsibility Statement (SRS) Form (for Assistants in Audiology or Speech-Language Pathology)--An agreement between a supervisor and an assistant in which the parties enter into a supervisory relationship, the supervisor agrees to assume responsibility for the assistant's activities, and the assistant agrees to perform only those activities assigned by the supervisor that are not prohibited under this chapter.

(35) [~~(33)~~] Telehealth--See definition(s) in Subchapter V, Telehealth.

(36) [~~(34)~~] Tele-supervision--Supervision of interns or assistants that is provided remotely using telecommunications technology. §111.3.Over-the-Counter Hearing Aids.

(a) Except as provided in this section, this chapter does not apply to servicing, marketing, selling, dispensing, providing customer support for, acquiring, or distributing over-the-counter hearing aids.

(b) A person is not required to obtain a license under this chapter to engage in an activity described by subsection (a).

(c) A person may not use the title "licensed dispenser" or "licensed seller" with respect to over-the-counter hearing aids or otherwise represent that the person holds a license to sell or dispense over-the-counter hearing aids unless the person is licensed as an audiologist or audiologist intern under this chapter or as a hearing instrument fitter and dispenser under Chapter 112.

(d) The supervision, prescription, order, involvement, or intervention of a person licensed in this state is not required under this chapter for a consumer to access over-the-counter hearing aids.

(e) A person licensed under this chapter may service, market, sell, dispense, provide customer support for, or distribute over-the-counter hearing aids. These activities do not exempt a person licensed under this chapter from any applicable provision of this chapter unrelated to the activities in §111.3(a).

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 11, 2023.

TRD-202303365

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

SUBCHAPTER U. FITTING AND DISPENSING OF HEARING INSTRUMENTS

16 TAC §111.201

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 401. No other statutes, articles, or codes are affected by the proposed rules.

§111.201.General Practice Requirements of Audiologists and Interns in Audiology Who Fit and Dispense Hearing Instruments.

In accordance with the Act, a licensed audiologist or licensed intern in audiology, who fits and dispenses hearing instruments, shall:

(1) adhere to the federal Food and Drug Administration regulations in accordance with 21 Code of Federal Regulations §801.422 [~~§801.420 and §801.421~~];

(2) ensure [~~insure~~] that all equipment used by the licensee within the licensee's scope of practice is calibrated in compliance with the American National Standards Institute (ANSI), S3.6, 1989, Specification for Audiometers, or S3.6, 1996, Specification for Audiometers;

(3) if the client is under age 18, receive a written statement before selling a hearing instrument that is signed by a licensed physician preferably one who specializes in diseases of the ear and states that the client's hearing loss has been medically evaluated during the preceding six-month period and that the client may be a candidate for a hearing instrument. A written statement is not required for clients 18 years of age or older; [~~If the client is age 18 or over, the audiologist or intern in audiology may inform the client that the medical evaluation requirement may be waived as long as the audiologist or intern in audiology:~~]

~~[(A) informs the client that the exercise of the waiver is not in the client's best health interest;]~~

~~[(B) does not encourage the client to waive the medical evaluation; and]~~

[(C) gives the client an opportunity to sign this statement: "I have been advised by (the name of the individual dispensing the hearing instrument) that the Food and Drug Administration has determined that my best health interest would be served if I had a medical evaluation by a licensed physician (preferably a physician who specializes in diseases of the ear) before purchasing a hearing instrument. I do not wish medical evaluation before purchasing a hearing instrument;"]

(4) verify appropriate fit of the hearing instrument(s), which may include real ear measures, functional gain measures, or other professionally accepted measures; and

(5) use a written contract that contains the department's name, mailing address, telephone number, and Internet website address, when providing services in this state.

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 11, 2023.

TRD-202303366

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

SUBCHAPTER W. JOINT RULE REGARDING THE SALE OF HEARING INSTRUMENTS

16 TAC §111.220

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 401. No other statutes, articles, or codes are affected by the proposed rules.

§111.220.Requirements Regarding the Sale of Hearing Instruments.

(a) This subchapter constitutes the rules required by Texas Occupations Code §401.2021 and §402.1021 to be adopted by the commission with the assistance of the Speech-Language Pathologists and Audiologists Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board. The requirements of this subchapter shall be repealed or amended only through consultation with, and mutual action by, both advisory boards.

(b) Guidelines for a 30 consecutive day trial period for a hearing instrument.

(1) All clients shall be informed of a 30 consecutive day trial period by written contract for services related to a hearing instrument. All charges associated with such trial period shall be included in this written contract for services, which shall include the name, address, and telephone number of the department.

(2) Any client purchasing one or more hearing instruments shall be entitled to a refund of the purchase price advanced by the client for the hearing instrument(s), less the agreed-upon amount associated with the trial period, upon return of the instrument(s), in good condition, to the licensed audiologist or licensed intern in audiology within the trial period ending 30 consecutive days from the date of delivery. Should the order be canceled by the client prior to the delivery of the hearing instrument(s), the licensed audiologist or licensed intern in audiology may retain the agreed-upon charges and fees as specified in the written contract for services. The client shall receive the refund due no later than the 30th day after the date on which the client cancels the order or returns the hearing instrument(s), in good condition, to the licensed audiologist or licensed intern in audiology.

(3) Should the hearing instrument(s) have to be returned to the manufacturer for repair or remake during the trial period, the 30 consecutive day trial period begins anew. The trial period begins on the day the client reclaims the repaired/remade hearing instrument(s). The expiration date of the new 30 consecutive day trial period shall be made available to the client in writing, through an amendment to the original written contract. The amendment shall be signed by both the licensed audiologist or licensed intern in audiology and the client.

(4) On delivery of a new replacement hearing instrument(s) during the trial period, the serial number of the new instrument(s), the delivery date of the hearing instrument(s), and the date of the expiration of the 30 consecutive day trial period must be stated in writing.

(5) If the date of the expiration of the 30 consecutive day trial period falls on a holiday, weekend, or a day the business is not open, the expiration date shall be the first day the business reopens.

(c) Upon the sale of any hearing instrument(s) or change of model or serial number of the hearing instrument(s), the owner shall ensure that each client receives a written contract that contains:

(1) the date of sale;

(2) the make, model, and serial number of the hearing instrument(s);

(3) the name, address, and telephone number of the principal place of business of the license holder who dispensed the hearing instrument;

(4) a statement that the hearing instrument is new, used, or reconditioned;

(5) the length of time and other terms of the guarantee and by whom the hearing instrument is guaranteed;

~~[(6) a copy of the written forms (relating to waiver forms);]~~

(6) [~~(7)~~] a statement on or attached to the written contract for services, in no smaller than 10-point bold type, as follows: "The client has been advised that any examination or representation made by a licensed audiologist or licensed intern in audiology in connection with the fitting and selling of the hearing instrument(s) is not an examination, diagnosis or prescription by a person duly licensed and qualified as a physician or surgeon authorized to practice medicine in the State of Texas and, therefore, must not be regarded as medical opinion or advice.";

(7) [~~(8)~~] a statement on the face of the written contract for services, in no smaller than 10-point bold type, as follows: "If you have a complaint against a licensed audiologist or intern in audiology, you may contact the Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, Telephone (512) 463-6599, Toll-Free (in Texas): (800) 803-9202";

(8) [~~(9)~~] the printed name, license type, signature and license number of the licensed audiologist or licensed intern in audiology who dispensed the hearing instrument;

(9) [~~(10)~~] the supervisor's name, license type, and license number, if applicable;

(10) [~~(11)~~] a recommendation for a follow-up appointment within thirty (30) days after the hearing instrument fitting;

(11) [~~(12)~~] the expiration date of the 30 consecutive day trial period under subsection (b); and

(12) [~~(13)~~] the dollar amount charged for the hearing instrument and the dollar amount charged for the return or restocking fee, if applicable.

(d) Record keeping. The owner of the dispensing practice shall ensure that records are maintained on every client who receives services in connection with the fitting and dispensing of hearing instruments. Such records shall be preserved for at least five years after the date of the last visit. All of the business's records and contracts are solely the property of the person who owns the business. Client access to records is governed by the Health Insurance Portability and Accountability Act (HIPAA). The records must be available for the department's inspection and shall include, but are not limited to, the following:

(1) pertinent case history;

(2) source of referral and appropriate documents;

(3) medical evaluation or waiver of evaluation if provided;

(4) copies of written contracts for services and receipts executed in connection with the fitting and dispensing of each hearing instrument provided;

(5) a complete record of hearing tests, and services provided; and

(6) all correspondence specifically related to services provided to the client or the hearing instrument(s) fitted and dispensed to the client.

(e) The written contract and trial period information provided to a client in accordance with this section, orally and in writing, shall be in plain language designed to be easily understood by the average consumer.

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 11, 2023.

TRD-202303367

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter A, §112.2; Subchapter H, §112.70; Subchapter J, §112.92 and §112.96; and Subchapter O, §112.140; and proposes a new rule at Subchapter A, §112.3, regarding the Hearing Instrument Fitters and Dispensers program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 112 implement Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers, and Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department.

The proposed rules implement changes made to Texas Occupations Code, Chapter 402 by SB 2017, 88th Legislature, Regular Session (2023); implement changes made by the U.S. Food and Drug Administration (FDA) in its final rule regarding over-the-counter hearing aids and prescription hearing aids; make changes to provide continuing education credit for proctors of the practical test; and update language to reference the Department's website in contracts and signs.

Implementation of SB 2017 and the FDA Hearing Aid Rule

The proposed rules are necessary to implement the provisions of SB 2017, which changed Chapter 402 of the Occupations Code governing Hearing Instrument Fitters and Dispensers, to address the new category of "over-the-counter hearing aids" established in federal law and rule.

In 2022, the FDA revised its federal rules, repealed prior rules, and adopted new rules for hearing instruments to include an "over-the-counter hearing aid" category of hearing instruments found in 21 CFR §800.30. The FDA Hearing Aid rule created a definition and framework for the new "over-the-counter hearing aid" category. The changes in the FDA Hearing Aid rule were designed to provide easier access to over-the-counter hearing aids by removing restrictions on the sale of those devices. To remain consistent with federal law, the state statutes and rules regulating the sale of hearing instruments required changes to reflect this new category and the new regulatory framework. The FDA Hearing Aid Rule may be found under Medical Devices; Ear, Nose, and Throat Devices; Establishing Over-the-Counter Hearing Aids, 87 Fed. Reg. 50698 (August 17, 2022) (later codified at 21 CFR Parts 800, 801, 808 and 874).

Since the definition of "hearing instrument" in Texas law would have included "over-the-counter hearing aids," S.B. 2017 changed Chapters 401 and 402 of the Occupations Code to reflect the changes in Federal law and to clarify the sale of "over-the-counter hearing aids" consistent with the FDA Hearing Aid Rule.

The proposed rules also make changes to reflect the FDA Hearing Aid Rule that repealed requirements related to certain medical waiver forms. To the extent that the Department has received prior comments during rule review or other rulemakings related to conformity of the Hearing Instrument Fitters and Dispensers rules to the FDA rules, the Department has proposed changes to conform these rules to SB 2017 and the FDA Hearing Aid Rule.

Continuing Education Credit for Proctors of the Practical Test

The proposed rules amend the continuing education categories to allow for continuing education credit for a licensee who proctors the practical test. A licensee may receive a single continuing education credit hour for each practical test date, not to exceed four continuing education credit hours per license term. The proposed rules are necessary to assist the program's function by making sure there is an adequate number of proctors for the practical test.

Update Language to Reference the Department's Website in Contracts and Signs

The proposed rules amend existing rules requiring that the Department's email address be included in every contract and on a sign in the licensee's primary place of business. The proposed rules require that the contracts and signs include the Department's website address instead of email address. This change is necessary to ensure proper complaint handling and to assist the public in contacting the Department in accordance with complaint handling processes.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Hearing Instrument Fitters and Dispensers Advisory Board at its meeting on August 30, 2023. The Advisory Board did not make any changes to the proposed rules. The Advisory Board did not vote on whether the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The proposed rules amend §111.2, Definitions. The proposed rules amend definitions for "fitting and dispensing hearing instruments," "hearing instrument," "Sale or sell" to be "sale"; create definitions for "hearing aid," and "Over-the-counter hearing aid"; and renumber the remaining definitions. These new definitions and revisions incorporate statutory changes made by SB 2017.

The proposed rules add new §112.3, Over-the-Counter Hearing Aids. This new rule incorporates the exemption language added to the statute by SB 2017.

New §112.3(a) clarifies that except as provided in §112.3, Chapter 112 does not apply to activities related to over-the-counter hearing aids. These activities include servicing, marketing, selling, dispensing, providing customer support for, acquiring, or distributing over-the-counter hearing aids.

New §112.3(b) provides that a person is not required to obtain a license to perform activities described in (a).

New §112.3(c) provides that a person may not use the term "licensed dispenser" or "licensed seller" in regard to the sale of over-the-counter hearing aids unless the person is licensed as a hearing instrument fitter and dispenser or as an audiologist or audiologist intern under Chapter 111.

New §112.3(d) provides that supervision, prescription, order, involvement, or intervention of a licensee is not required for a consumer to access over-the counter hearing aids.

New §112.3(e) provides that a licensee may engage in the activities described in (a) regarding over-the-counter hearing aids, but that those activities do not exempt a licensee from any applicable provision of Chapter 112 unrelated to the activities in (a).

Subchapter H. Continuing Education Requirements.

The proposed rules amend §112.70. Continuing Education--Hours and Courses. The proposed rules amend §112.70(g)(2) and (3) by shifting "and/or" from (g)(2) to (g)(3) due to the addition of (g)(4).

New §112.70(g)(4) provides that a licensee who serves as a proctor for the practical test may receive up to one continuing education credit hour for each test date, with a maximum of four continuing education hours of credit earned each license term.

Subchapter J. Responsibilities of the Licensee.

The proposed rules amend §112.92, Consumer Information and Client Records. The proposed amendments require a licensee to inform each client of the website address of the Department in each written contract for services and on a sign prominently displayed in their primary place of business. This is a change from the existing requirement to inform clients of the email address of the Department.

The proposed rules amend §112.96 to delete references to the repealed federal rules 21 CFR §801.420, Hearing aid devices; professional and patient labeling, and 21 CFR §801.421, Hearing aid devices; conditions for sale. The proposed rule references new federal rule 21 CFR §801.422, which addresses prescription hearing aids. The proposed rules reflect the changes made by the FDA Hearing Aid Rule.

Subchapter O. Joint Rule Regarding the Sale of Hearing Instruments.

The proposed rules amend §112.140. Requirements Regarding the Sale of Hearing Instruments.

The proposed rules amend §112.140(b) and §112.140(b)(1) to clarify that the 30-day trial period referenced in this rule relates to a hearing instrument.

The proposed amendments remove §112.140(c)(6) because it incorporates a reference to waiver forms required by 21 CFR §801.421. Since 21 CFR §801.421 was repealed by the FDA in the FDA Hearing Aid Rule, this paragraph is also being proposed for deletion. The remaining paragraphs in this subsection are renumbered.

The proposed rules amend §112.140(d)(3) to require medical evaluations or waivers of evaluation to be maintained only if they are provided. This change reflects the previously referenced repeal of waiver requirements in federal law and is made for consistency with proposed amendments to §112.140(c)(6).

Since §112.140 is a joint rule required by Texas Occupations Code §401.2021 and §402.1021 to be adopted by the Commission with the assistance of the Speech-Language Pathologists and Audiologists Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board, §112.140 will mirror the text of §111.220.

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. There is no impact to local government costs because local governments are not responsible for administering the state regulation of hearing instrument fitting and dispensing under Occupations Code, Chapter 402. The proposed rules implement SB 2017 regarding the new FDA category of over-the-counter hearing aids, update definitions, add clarifying language, and introduce a new way to earn continuing education hours, but these changes do not impact program costs.

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, the public benefit will be implementation of SB 2017 and the changes in the Final Hearing Aid Rule. The new category of over-the-counter hearing aids will increase access to affordable hearing aids for individuals with mild to moderate hearing loss. The proposed rules make it clear that a license is not required to sell over-the-counter hearing aids. However, if a licensee chooses to sell OTC hearing aids, they must continue to abide by applicable regulations for their license, such as Code of Ethics and Continuing Education requirements.

The proposed rules also grant continuing education credit for licensees who proctor the state practical test. More proctors are necessary so that the practical test can be administered more frequently, and the continuing education credit would be an incentive for licensees to become proctors. There is no cost to become a proctor, so proctoring a test would be a way to earn free continuing education at no cost. Additionally, the more tests that are administered, the more Temporary Training Permit Holders will move forward in their careers, which will increase access to the number of hearing instrument fitters and dispensers available to for the public.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Some license holders may decide to earn continuing education credits by serving as proctors, which could result in a decrease in attendance of continuing education classes. However, the number of license holders who may become proctors is not expected to be large, and therefore any decrease in the attendance of continuing education classes and possible resulting loss in revenue for continuing education providers is expected to be minimal, if at all.

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

The Hearing Instrument Fitters and Dispensers Program regulates individuals, many of which are small or micro-businesses. As of July 18, 2023, there are 706 Hearing Instrument Fitters and Dispensers, and 39 Apprentice Permit holders, and 105 Temporary Training Permit holders licensed in Texas. It is unknown how many of these individuals or the entities that employ them fall within the definitions of a small or micro-business because data regarding the number of employees and gross annual sales is not collected by the agency. The proposed rule changes have no impact on the costs related to selling OTC hearing aids.

Some providers of continuing education for the Hearing Fitter and Dispenser program may be small or micro-businesses, however the number which might be is unknown since TDLR does license these entities. Some hearing instrument fitters and dispensers may decide to avail themselves of the opportunity to earn continuing education credits by serving as proctors, which could result in less continuing education classes being attended and paid for. However, the number of license holders who may become proctors is not expected to be large, and therefore any decrease in the attendance of continuing education classes and possible resulting loss in revenue for continuing education providers is expected to be minimal, if at all. There will be no adverse economic impact for these businesses.

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 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.

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

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rules expand an existing regulation by adding the opportunity to earn continuing education hours at no cost by serving as a proctor for practical tests.

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

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.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §112.2, §112.3

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, 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 rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.2.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 Occupations Code, Chapter 402, concerning the licensing of persons authorized to fit and dispense hearing instruments.

(2) Advisory board--The Hearing Instrument Fitters and Dispensers Advisory Board.

(3) Applicant--An individual who applies for a license or permit under the Act.

(4) Apprentice permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, §402.207 and this chapter, and which authorizes the permit holder to fit and dispense hearing instruments under appropriate supervision from an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(5) Certification, proof of--A certificate of calibration, compliance, conformance, or performance.

(6) Commission--The Texas Commission of Licensing and Regulation.

(7) Contact hour--A period of time equal to 55 minutes.

(8) Continuing education hour--A period of time equal to 50 minutes.

(9) Contract--See definition for "written contract for services."

(10) Continuing education--Education intended to maintain and improve the quality of professional services in the fitting and dispensing of hearing instruments, to keep licensees knowledgeable of current research, techniques, and practices, and provide other resources which will improve skills and competence in the fitting and dispensing of hearing instruments.

(11) Continuing education provider--A provider of a continuing education activity.

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

(13) Direct supervision--The physical presence with prompt evaluation, review and consultation of a supervisor any time a temporary training permit holder is engaged in the act of fitting and dispensing of hearing instruments.

(14) Executive director--The executive director of the department.

(15) Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes prescribing, ordering, or authorizing the use of hearing instruments, the making of impressions for earmolds to be used as a part of the hearing instruments, and providing any necessary post-fitting counseling for the purpose of fitting and dispensing hearing instruments.

(16) Hearing aid--Any wearable device designed for, offered for the purpose of, or represented as aiding persons with or compensating for impaired hearing. The term includes hearing instruments and over-the-counter hearing aids.

(17) [~~(16)~~] Hearing instrument--A prescription hearing aid as that term is defined by 21 C.F.R. Section 800.30. [Any wearable instrument or device designed for, or represented as, aiding, improving, or correcting defective human hearing. The term includes the instrument's parts and any attachment, including an earmold, or accessory to the instrument. The term does not include a battery or cord.]

(18) [~~(17)~~] Indirect supervision--The daily evaluation, review, and prompt consultation of a supervisor any time a permit holder is engaged in the act of fitting and dispensing hearing instruments.

(19) [~~(18)~~] License--A license issued by the department under the Act and this chapter to a person authorized to fit and dispense hearing instruments.

(20) [~~(19)~~] Licensee--Any person licensed or permitted by the department under Texas Occupations Code Chapter 401 or 402.

(21) [~~(20)~~] Manufacturer--The term includes a person who applies to be a continuing education provider who is employed by, compensated by, or represents an entity, business, or corporation engaged in any of the activities described in this paragraph. An entity, business, or corporation that:

(A) is engaged in manufacturing, producing, or assembling hearing instruments for wholesale to a licensee or other hearing instrument provider;

(B) is engaged in manufacturing, producing, or assembling hearing instruments for sale to the public;

(C) is a subsidiary of, or held by, an entity that is engaged in manufacturing, producing, or assembling hearing instruments as described in this definition;

(D) holds an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition; or

(E) serves as a buying group for an entity, business, or corporation engaged in manufacturing, producing, or assembling hearing instruments as described in this definition.

(22) [~~(21)~~] Non-Manufacturer--Any person, entity, buyer group, or corporation that does not meet the definition of a manufacturer.

(23) Over-the-counter hearing aid--The term has the meaning assigned by 21 C.F.R. Section 800.30.

(24) [~~(22)~~] Person--An individual, corporation, partnership, or other legal entity.

(25) [~~(23)~~] Sale [~~or sell~~]--The term includes a lease, rental, or any other purchase or exchange for value. [~~A transfer of title or of the right to use by lease, bailment, or other contract.~~] The term does not include a sale at wholesale by a manufacturer to a person licensed under the Act or to a distributor for distribution and sale to a person licensed under the Act.

(26) [~~(24)~~] Specific Product Information--Specific product information shall include, but not be limited to, brand name, model number, shell type, and circuit type.

(27) [~~(25)~~] Supervisor--A supervisor is an individual who holds a valid license to fit and dispense hearing instruments under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312, and who meets the qualifications established by Texas Occupations Code, §402.255 and this chapter.

(28) [~~(26)~~] Telehealth--See definition(s) in Subchapter N, Telehealth.

(29) [~~(27)~~] Temporary training permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, Chapter 402, Subchapter F, and this chapter, to authorize the permit holder to fit and dispense hearing instruments only under the direct or indirect supervision, as required and as appropriate, of an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(30) [~~(28)~~] Working days--Working days are Monday through Friday, 8:00 a.m. to 5:00 p.m.

(31) [~~(29)~~] Written contract for services--A written contract between the license holder and purchaser of a hearing instrument as set out in §112.140 (relating to Joint Rule Regarding the Sale of Hearing Instruments).

(32) [~~(30)~~] 30-day trial period--The period in which a person may cancel the purchase of a hearing instrument.

§112.3.Over-the-Counter Hearing Aids.

(b) A person is not required to obtain a license under this chapter to engage in an activity described by subsection (a).

(c) A person may not use the title "licensed dispenser" or "licensed seller" with respect to over-the-counter hearing aids or otherwise represent that the person holds a license to sell or dispense over-the-counter hearing aids unless the person is licensed as a hearing instrument fitter and dispenser under this chapter or as an audiologist or audiologist intern under Chapter 111.

(d) The supervision, prescription, order, involvement, or intervention of a person licensed in this state is not required under this chapter for a consumer to access over-the-counter hearing aids.

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 8, 2023.

TRD-202303301

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

SUBCHAPTER H. CONTINUING EDUCATION REQUIREMENTS

16 TAC §112.70

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.70.Continuing Education--Hours and Courses.

(a) This section applies to a hearing instrument fitter and dispenser license holder.

(b) Except as provided under subsection (j), a license holder must complete 20 continuing education hours during each license term.

(c) Pursuant to 16 Texas Administrative Code (TAC), Chapter 59, a continuing education hour shall be 50 minutes of attendance in an approved continuing education course.

(d) No more than 10 continuing education hours per license term may be earned from an approved online continuing education course offered by an approved continuing education provider.

(e) No more than 5 continuing education hours per license term may be earned from an approved continuing education course offered by an approved manufacturer continuing education provider.

(f) A license holder may be credited with continuing education hours for a published book or article written by the license holder that contributes to the license holder's professional competence. The department may approve credit hours based on the degree that the published book or article advanced knowledge regarding the fitting and dispensing of hearing instruments. No more than 5 contact hours per license term may be approved for preparation of a publication.

(g) Continuing education shall be acceptable if the education is described in subsection (f) or falls in one or more of the following categories:

(1) participation in approved continuing education courses offered by approved continuing education providers;

(2) completion of academic courses at an accredited college or university in areas directly supporting development of skills and competence in the fitting and dispensing of hearing instruments; [~~and/or~~]

(3) participation or teaching in programs directly related to the fitting and dispensing of hearing instruments (e.g., institutes, seminars, workshops, or conferences), which are approved or offered by an accredited college or university; and/or[.]

(4) serving as a Proctor for the practical test, not to exceed one continuing education hour of continuing education credit for each test date and with a maximum of four continuing education hours of credit earned each license term.

(h) To receive credit for completion of academic work the license holder must submit an official transcript(s) from accredited school(s) showing completion of hours in appropriate areas for which the license holder received a passing grade.

(i) The department will not approve continuing education credit for any license holder for:

(1) education incidental to the regular professional activities of a license holder such as knowledge gained through experience or research;

(2) organization activity such as serving on committees or councils or as an officer in a professional organization; and

(3) any program which is not described in, or in compliance with, this section.

(j) Pursuant to Texas Occupations Code §402.305, the department may renew the license of a license holder who has not complied with the continuing education requirements if the license holder:

(1) submits proof from an attending physician that the license holder suffered a serious disabling illness or physical disability that prevented compliance with the continuing education requirements during the twenty-four (24) months before the end of the license term; or

(2) was licensed for the first time during the twenty-four (24) months before the end of the license term.

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 8, 2023.

TRD-202303302

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

SUBCHAPTER J. RESPONSIBILITIES OF THE LICENSEE

16 TAC §112.92, §112.96

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.92.Consumer Information and Client Records.

(a) A licensee shall inform each client of the name, address, website address [~~email address~~], and telephone number of the department for the purpose of filing a complaint or reporting violations of the Act or this chapter on:

(1) each written contract for services; and

(2) a sign prominently displayed in the primary place of business.

(b) A licensee or a hearing instrument fitting and dispensing practice shall provide to a client, who provides a signed, written request, a copy of the client's records that pertain to the testing for, and fitting and dispensing of, hearing instruments.

§112.96.Conditions of Sale.

A license holder or permit holder shall comply with the federal regulations adopted by the U.S. Food and Drug Administration at Title 21 Code of Federal Regulations §801.422 [~~§801.420 and §801.421~~]. A link to the federal regulations will be available online through the department's website.

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 8, 2023.

TRD-202303303

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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

SUBCHAPTER O. JOINT RULE REGARDING THE SALE OF HEARING INSTRUMENTS

16 TAC §112.140

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.140.Requirements Regarding the Sale of Hearing Instruments.

(a) This subchapter constitutes the rules required by Texas Occupations Code §401.2021 and §402.1021 to be adopted by the commission with the assistance of the Speech-Language Pathology and Audiology Advisory Board and the Hearing Instrument Fitters and Dispensers Advisory Board. The requirements of this subchapter shall be repealed or amended only through consultation with, and mutual action by, both advisory boards.

(b) Guidelines for a 30 consecutive day trial period for a hearing instrument.

(2) Any client purchasing one or more hearing instruments shall be entitled to a refund of the purchase price advanced by the client for the hearing instrument(s), less the agreed-upon amount associated with the trial period, upon return of the instrument(s), in good condition to the licensed hearing instrument dispenser, apprentice permit holder, or temporary training permit holder within the trial period ending 30 consecutive days from the date of delivery. Should the order be canceled by the client prior to the delivery of the hearing instrument(s), the licensed hearing instrument dispenser, apprentice permit holder, or temporary training permit holder may retain the agreed-upon charges and fees as specified in the written contract for services. The client shall receive the refund due no later than the 30th day after the date on which the client cancels the order or returns the hearing instrument(s), in good condition, to the licensed hearing instrument dispenser, apprentice permit holder, or temporary training permit holder.

(3) Should the hearing instrument(s) have to be returned to the manufacturer for repair or remake during the trial period, the 30 consecutive day trial period begins anew. The trial period begins on the day the client reclaims the repaired/remade hearing instrument(s). The expiration date of the new 30 consecutive day trial period shall be made available to the client in writing, through an amendment to the original written contract. The amendment shall be signed by both the licensed hearing instrument dispenser, apprentice permit holder, or temporary training permit holder and the client.

(c) Upon the sale of any hearing instrument(s) or change of model or serial number of the hearing instrument(s), the owner shall ensure that each client receives a written contract that contains:

(1) the date of sale;

(2) the make, model, and serial number of the hearing instrument(s);

(3) the name, address, and telephone number of the principal place of business of the license or permit holder who dispensed the hearing instrument;

(4) a statement that the hearing instrument is new, used, or reconditioned;

(5) the length of time and other terms of the guarantee and by whom the hearing instrument is guaranteed;

~~[(6) a copy of the written forms (relating to waiver forms);]~~

(6) [~~(7)~~] a statement on or attached to the written contract for services, in no smaller than 10-point bold type, as follows: "The client has been advised that any examination or representation made by a licensed hearing instrument dispenser or apprentice permit holder or temporary training permit holder in connection with the fitting and selling of the hearing instrument(s) is not an examination, diagnosis or prescription by a person duly licensed and qualified as a physician or surgeon authorized to practice medicine in the State of Texas and, therefore, must not be regarded as medical opinion or advice;"

(7) [~~(8)~~] a statement on the face of the written contract for services, in no smaller than 10-point bold type, as follows: "If you have a complaint against a licensed hearing instrument dispenser or apprentice permit holder or temporary training permit holder, you may contact the Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, Telephone (512) 463-6599, Toll-Free (in Texas): (800) 803-9202, www.tdlr.texas.gov";

(8) [~~(9)~~] the printed name, license type, signature and license or permit number of the licensed hearing instrument dispenser, apprentice permit holder, or temporary training permit holder who dispensed the hearing instrument;

(9) [~~(10)~~] the supervisor's name, license type, and license number, if applicable;

(10) [~~(11)~~] a recommendation for a follow-up appointment within thirty (30) days after the hearing instrument fitting;

(11) [~~(12)~~] the expiration date of the 30 consecutive day trial period under subsection (b); and

(12) [~~(13)~~] the dollar amount charged for the hearing instrument and the dollar amount charged for the return or restocking fee, if applicable.

(1) pertinent case history;

(2) source of referral and appropriate documents;

(3) medical evaluation or waiver of evaluation if provided;

(4) copies of written contracts for services and receipts executed in connection with the fitting and dispensing of each hearing instrument provided;

(5) a complete record of hearing tests, and services provided; and

(6) all correspondence specifically related to services provided to the client or the hearing instrument(s) fitted and dispensed to the client.

(e) The written contract and trial period information provided to a client in accordance with this subchapter, orally and in writing, shall be in plain language designed to be easily understood by the average consumer.

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 8, 2023.

TRD-202303304

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 22, 2023

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