PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

SUBCHAPTER K. LICENSING PROVISIONS RELATED TO MILITARY SERVICE MEMBERS, MILITARY VETERANS, AND MILITARY SPOUSES

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter K, §§60.500-60.504, 60.510, 60.512, 60.514, 60.516, and 60.519; adopts a new rule at Subchapter K, §60.518; and adopts the repeal of an existing rule at Subchapter K, §60.518, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the September 29, 2023, issue of the Texas Register (48 TexReg 5609). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 60, Subchapter K, implement Texas Occupations Code, Chapter 51, General Provisions Related to Licensing; Chapter 55, Licensing of Military Service Members, Military Veterans, and Military Spouses; and the license portability provisions of the federal Servicemembers' Civil Relief Act found at 50 U.S.C. §4025a.

The adopted rules are necessary to implement Senate Bill (SB) 422, 88th Legislature, Regular Session (2023), and the federal Servicemembers' Civil Relief Act by: (1) updating current rule definitions and terms to comport with federal and state law; (2) extending the license portability of out-of-state occupational licenses for military service members stationed in Texas consistent with federal and state law; (3) extending residency status for non-resident license applicants to military service members; and (4) implementing a three-year recognition of out-of-state occupational licenses for military spouses whose status as a spouse changes due to a divorce or other occurrence. The adopted rules also repeal the issuance of a three-year temporary license "formerly available in conjunction with the recognition of an out-of-state license" for eligible military members, as it is redundant with other licensing options. The adopted rules also introduce new §60.518 to implement the provisions of SB 422 and the federal legislation. Current §60.518 is repealed by the adopted rules.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §60.500, Military Subchapter, to include a reference to the license portability provisions of the federal Servicemembers' Civil Relief Act found at 50 U.S.C. §4025a.

The adopted rules amend §60.501, Definitions, by: (1) expanding the definition of "active duty" to include an added portion of the federal definition for "military service" from 50 U.S.C. §3911(2)(C) which requires any period during which a person is absent from duty on account of sickness, wounds, leave, or other lawful cause to be classified as active duty; and (2) shortening the length of defined terms used throughout the rules.

The adopted rules amend §60.502, Determining the Amount of Military Experience, Service, Training, or Education, to remove redundant or unnecessary language.

The adopted rules amend §60.503, Exemption from Late Renewal Fees, to remove redundant or unnecessary language.

The adopted rules amend §60.504, Extension of Certain Deadlines, to remove redundant or unnecessary language.

The adopted rules amend §60.510, License Requirements for Applicants with Military Experience, Service, Training, or Education, to remove redundant or unnecessary language.

The adopted rules amend §60.512, Expedited Alternative Licensing Requirements--Substantially Equivalent License, to remove redundant or unnecessary language.

The adopted rules amend §60.514, Expedited Alternative Licensing Requirements--Previously Held Texas License, to remove redundant or unnecessary language.

The adopted rules amend §60.516, Expedited Alternative Licensing Requirements--Demonstration of Competency by Alternative Methods, to remove redundant or unnecessary language.

The adopted rules add new §60.518, Recognition of Out-of-State License of Military Service Members and Military Spouses, which describes the out-of-state license recognition process related to a regulated business or occupation for eligible service members and their spouses. The new rule will: (1) implement pertinent provisions of the federal Servicemembers' Civil Relief Act alongside SB 422 to provide for recognition of out-of-state occupational licenses for service members and spouses; (2) describe the specific prerequisites and procedure by which the department will grant recognition to out-of-state occupational licenses to eligible persons; (3) repeal the department's issuance of a three-year temporary license to an eligible person whose out-of-state occupational has been recognized; (4) authorize a military spouse who is recognized to engage in a business or occupation in Texas under a current out-of-state license to continue to engage in that business or occupation for three years after formal department recognition, in the event of divorce or similar event that affects the spouse's status as a military spouse; (5) acknowledge the applicability of interstate licensure compacts to state law; and (6) remove redundant or unnecessary language. This rule replaces existing §60.518.

The adopted rules amend §60.519, License Eligibility-Establishing License Residency Requirement for Out-of-State Military Service Members and Military Spouses, to: (1) acknowledge the applicability of interstate licensure compacts to state law; and (2) remove redundant or unnecessary language.

The adopted rules repeal existing §60.518.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 29, 2023, issue of the Texas Register (48 TexReg 5609). The public comment period closed on October 30, 2023. The Department did not receive any comments from interested parties on the proposed rules.

COMMISSION ACTION

At its meeting on December 1, 2023, the Commission adopted the proposed rules as published in the TexasRegister.

16 TAC §§60.500 - 60.504, 60.510, 60.512, 60.514, 60.516, 60.518, 60.519

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 55, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 55, and the Federal Servicemembers Civil Relief Act at 50 U.S.C. §4025a, and the program statutes for all of the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 (Motor Fuel Metering and Quality); 2311 (Electric Vehicle Charging Stations); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

The legislation that enacted the statutory authority under which the adopted rules are proposed to be adopted is Senate Bill 422, 88th Legislature, Regular Session (2023).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304682

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 29, 2023

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

STATUTORY AUTHORITY

The adopted repeals are adopted under Texas Occupations Code, Chapters 51 and 55, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 51 and 55, and the Federal Servicemembers Civil Relief Act at 50 U.S.C. §4025a, and the program statutes for all of the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 (Motor Fuel Metering and Quality); 2311 (Electric Vehicle Charging Stations); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

The legislation that enacted the statutory authority under which the adopted repeals are proposed to be adopted is Senate Bill 422, 88th Legislature, Regular Session (2023).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304683

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 29, 2023

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

16 TAC §§76.22, 76.24, 76.25, 76.27, 76.70, 76.80

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 76, §§76.22, 76.24, 76.25, 76.27, 76.70, and 76.80, regarding the Water Well Drillers and Pump Installers program, without changes to the proposed text as published in the October 6, 2023, issue of the Texas Register (48 TexReg 5801). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 76, implement Texas Occupations Code, Chapter 1901, Water Well Drillers, and Chapter 1902, Water Well Pump Installers.

Implementation of HB 3744

The adopted rules implement House Bill 3744, 88th Legislature, Regular Session (2023). This legislation establishes that a license issued under Sections 1901.155 and 1902.155 of the Texas Occupations Code, relating to water well drillers and water well pump installers, is valid for one or two years, as determined by commission rule.

The adopted rules are necessary to establish a change in the length of the license terms for certain license holders. Beginning on January 1, 2024, the license terms for initial licenses for the driller, pump installer, and combination driller and pump installer license types change from one to two years.

Additionally, the adopted rules are necessary to establish that existing licenses renewed by the Department are valid for one year if renewed before March 1, 2024, or for two years if renewed on or after March 1, 2024. The adopted rules will allow for the change in the license terms to be phased in as the license holders renew their licenses. The continuing education requirements and the fees are also adjusted accordingly for holders of those licenses.

Changes to State Well Reports

Lastly, the adopted rules implement staff changes. The adopted rules establish that well drillers shall now deliver a copy of their well log to the Department electronically through the Texas Well Report Submission and Retrieval System (TWRSRS). The adopted rules are necessary to streamline the state well report process which will save well drillers and the state resources.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §76.22. Applications for Licenses and Renewals. The adopted rules establish that, beginning on January 1, 2024, a license issued by the Department will no longer expire annually from the date issued. Instead, licenses issued by the Department are valid for two years from the date issued. Any license issued before January 1, 2024, will continue to be valid for one year.

The adopted rules amend §76.24. License Renewal. The adopted rules remove the requirement of paying an annual fee to the Department for license renewal and establishes that it must instead be paid on or before the expiration date of the license. Licensees must show proof of continuing education to renew. Licenses that are renewed before March 1, 2024, are valid for one year while those renewed on or after March 1, 2024, are valid for two years. This change ensures that revenue from licensees is received in odd-numbered and even-numbered years.

The adopted rules amend §76.25. Continuing Education. The adopted rules update the continuing education hour requirements for licensees to correspond with the changes in the license terms. For licensees who renew before March 1, 2024, four hours of continuing education are required to renew a license: one hour of instruction dedicated to Water Well Driller/Pump Installer statutes and rules and three hours of topics directly related to the water well industry. For licensees who renew on or after March 1, 2024, eight hours of continuing education are required to renew a license: one hour of instruction dedicated to Water Well Driller/Pump Installer statutes and rules and seven hours of topics directly related to the water well industry.

The adopted rules amend §76.27. Registration for Driller and/or Pump Installer Apprenticeship. The adopted rules rename the section "Registration for Driller and/or Pump Installer Apprenticeship; Renewal." The adopted rules establish that an apprentice registration issued by the Department is valid for one year and establish the renewal requirements for apprentices.

The adopted rules amend §76.70. Responsibilities of the Licensee--State Well Reports. The existing rules establish that every driller who drills, deepens, or alters a well shall maintain a State of Texas Well Report and provide a copy of the well log to: the Department; the Texas Commission on Environmental Quality; the owner of the well or the person for whom the well was drilled; and the groundwater conservation district in which the well is located, if any. The adopted rules establish that the driller shall deliver a copy of the well log to: the Department, electronically, through the Texas Well Report Submission and Retrieval System; the owner of the well or the person for whom the well was drilled; and the groundwater conservation district in which the well is located, if any. The adopted rules remove the requirement of delivering a copy of the well log to the Texas Commission on Environmental Quality.

The adopted rules amend §76.80. Fees. The adopted rules update the application and renewal fees for licensees. Beginning January 1, 2024, application fees are doubled to reflect the change from a one-year to a two-year license. Licenses that are renewed before March 1, 2024, will not see an increase in renewal fees, but for licenses that are renewed on or after March 1, 2024, the renewal fees are doubled to reflect the change from a one-year to a two-year license. This change ensures that revenue from licensees is received in odd-numbered and even-numbered years.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the October 6, 2023, issue of the Texas Register (48 TexReg 5801). The public comment period closed on November 6, 2023. The Department received comments from two interested parties on the proposed rules. The public comments are summarized below.

Comment: One comment from Rolling Plains GCD was in support of the effort to require electronic submission of state well reports.

Department Response: The Department appreciates the comment in support of the proposed rule.

Comment: One comment from an interested party was against the effort to require electronic submission of state well reports unless there is a method of selecting information that can be duplicated between documents.

Department Response: The Department disagrees with this comment - electronic submission, in the aggregate, will save time and redirect resources to areas such as water well quality assurance and abandoned and deteriorated wells mitigation to better protect the public's groundwater resources. The Department did not make any changes as a result of this comment.

ADVISORY COUNCIL RECOMMENDATIONS AND COMMISSION ACTION

The Water Well Drillers and Pump Installers Advisory Council met on September 21, 2023, to discuss the proposed rules. The Advisory Council voted and recommended that the proposed rules be published in the Texas Register for public comment with additional recommended changes to §76.25(c). The Advisory Council recommended to increase the number of continuing education hours for an apprentice registrant from one hour to four hours, with one hour dedicated to statutes and rules and three hours dedicated to topics directly related to the water well industry. The Department did not include the Advisory Council's recommendation regarding §76.25(c) in this adoption, but it will take it into consideration for a future rulemaking. At its meeting on December 1, 2023, the Commission adopted the proposed rules as published in the Texas Register.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 1901, and 1902 which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 51, 1901, and 1902. No other statutes, articles, or codes are affected by the adopted rules. The legislation that enacted the statutory authority under which the adopted rules are proposed to be adopted is House Bill 3744, 88th Legislature, Regular Session (2023).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304684

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: October 6, 2023

For further information, please call: (512) 463-3306

The Texas Commission of Licensing and Regulation (Commission) adopts 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; adopts new rules at §§91.61, 91.63 - 91.65; and adopts the repeal of existing rule §91.65, regarding the Licensed Breeder program, without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5347). These rules will not be republished.

The Commission also adopts amendments to existing rules at 16 TAC Chapter 91, §§91.53, 91.62 and 91.80, regarding the Licensed Breeder program, with changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5347). These rules will be republished.

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 now 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 adopted rules also make minor changes to the responsibilities of license holders, as well as 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 who are 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. 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 adopted rules add a new authorization from the CFR allowing license holders 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 adopted 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 adopted 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.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §91.10, Definitions, 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 adopted rules amend §91.20, Applicability, to update a citation to the Texas Racing Act.

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

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

The adopted 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 adopted 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 has also been updated.

The adopted 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 adopted rules amend §91.51, Inspections-Prelicense Exemption, to make the rule language more concise.

The adopted 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 adopted 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. Minor grammatical edits to §91.53(b), changing "licensee" to "licensees," and §91.53(h), adding "a" to read "a Tier 2 out-of-cycle inspection," were approved at adoption.

The adopted rules amend §91.54, Corrective Actions Following Periodic or Out-of-Cycle Inspections, 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 adopted rules amend §91.55, Responsibilities of the Department--Directory, to clarify language.

The adopted rules amend §91.57, Responsibilities of the Department--Consumer Interest 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 adopted rules amend §91.58, Responsibilities of the Departmentâ--Donations, Disbursements and Reporting, to correct a term.

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

The adopted rules amend §91.66, Responsibilities of Inspectors--Inspections, Investigations, and Reports of Animal Cruelty, to update and correct language.

The adopted rules amend §91.73, Responsibilities of Licensee--Onsite Availability of Law and Rules, to clarify the wording of the requirement and to allow licensed breeders to maintain electronic copies of the Act and program rules.

The adopted rules amend §91.74, Responsibilities of Licensee--Mandatory Contract Provisions, to remove unnecessary language.

The adopted rules amend §91.76, Responsibilities of Licensee--Annual Inventory, to clarify language.

The adopted rules amend §91.77, Responsibilities of Licensee--Animal Records Content, Availability, and Retention Period, 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 adopted 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 adult intact female animals. Standard provisions relating to Department fees are also added and language is updated and corrected. On recommendation from staff, three instances of the word "adult" were added for internal consistency in the rules and were approved by the Advisory Committee when it recommended adoption of the rules.

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

The adopted rules amend §91.100, Standards of Care--Housing Generally, to move a provision from this section to §91.10, Definitions, and to renumber the section.

The adopted rules amend §91.101, Standards of Care--Indoor Housing Facilities, to correct a term.

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

The adopted rules amend §91.104, Standards of Care--Primary Enclosure, to clarify language and to renumber the provisions of the section.

The adopted rules amend §91.105, Standards of Care--Compatible Grouping, to clarify and renumber the provisions.

The adopted rules amend §91.107, Standards of Care--Feeding, to clarify that measures must be taken to ensure that self-feeders are free from molding, deterioration, or caking of feed.

The adopted rules amend §91.112, Standards of Care--Veterinary Care, to update a citation to the Veterinary Licensing Act and clarify language.

The adopted rules amend §91.202, Transportation Standards--Primary Enclosure Used to Transport Live Dogs and Cats, to clarify language.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 22, 2023, issue of the Texas Register (48 TexReg 5347). The public comment period closed on October 23, 2023. The Department received comments from 253 interested parties, including 21 organizations. The public comments are summarized below.

Many written comments from individuals indicated an affiliation with an organization but did not specify that the comment was made on behalf of, or as a representative of, the organization. More than one individual submitted comments stating that they represent an organization, so for some of the listed organizations comments were submitted by more than one individual. The Department does not verify whether a person is authorized to comment as a representative of an organization. The organizations for which comments were submitted are the following:

A. American Kennel Club;

B. Anderson County Humane Society;

C. Animal Connection of Texas, Inc.;

D. Animal Legal Defense Fund;

E. Aussie Rescue of North Texas;

F. Barrio Dogs, Inc.;

G. Best Friends Animal Society;

H. Find Your Riley Fund;

I. Houston PetSet;

J. Humane Tomorrow;

K. Kerrville Pets Alive!;

L. Lucky Two Times Animal Sanctuary and Advocacy Programs;

M. Metro Animals;

N. People Assisting Animal Control;

O. Responsible Pet Owners Alliance;

P. SPCA;

Q. SPCA of Dallas Texas;

R. SPCA of Texas;

S. TAP Newsletter;

T. Texas Animal Control Association; and

U. Texas Humane Legislation Network.

For conciseness in this response these organizations are identified by the letter preceding the name in the list above.

The Department must respond to comments on the proposed rules. 251 of the 253 interested parties who commented expressed support for the rules, but many also raised concerns for their implementation and effect. The Department believes it is appropriate to acknowledge these areas of concern and is doing so in its response. The Department is also initiating a new rulemaking to update the standards of care, as required by law, during which these concerns may be further addressed.

The public comments received did not include recommendations for specific changes to the rule text as proposed. The Department may not insert text changes at the time of rule adoption that depart in any significant way from the rules as proposed. Therefore, the following comment summaries and responses address the topics and issues raised without identifying word-for-word rule text changes that are not being made in this rulemaking but that might be made in the future.

Comment: 120 individuals and four organizations (P, Q, R, U) submitted the following comment. Some of the submissions included additional details about how the commenter contacted his or her legislators, and word choices varied somewhat from person to person, but the same main statements were made:

"I supported the passage of S.B. 876 during the regular legislative session as it fixed two major loopholes preventing the Texas Licensed Breeders Program from working as intended. AKC wants more loopholes for breeders to operate outside the law. Please ignore AKC's attempt to undermine the Legislature and the Program by muddying the waters on the exceptions passed by the Legislature. I fully support the legislation and the rules as proposed to make much-needed improvements to the Texas Licensed Breeder Program."

32 individuals and two organizations (B, U) submitted the following, similar comment with minor variations in wording:

"I advocated for my Representative and Senator to support and vote to pass S.B. 876 during the regular legislative session, as it fixed two major loopholes preventing the Texas Licensed Breeders Program from working as intended. I fully support the legislation and the rules as proposed to make much-needed improvements to the Texas Licensed Breeder Program. Please ignore other organizations' attempts to make additional changes and create needless loopholes within the rules and laws surrounding breeding dogs and cats in the State of Texas."

In addition to the multiple similar comments from 152 individuals and five organizations just described above:

Sixty-three additional individuals and 11 organizations (C, D, E, G, H, I, K, Q, R, T, U) expressed their support for S.B. 876 and the proposed rules. Four organizations (A, L, M, N) expressed support specifically for the proposed rules.

Fourteen additional individuals and eight organizations (C, D, G, H, K, N, T, U) expressed strong concern about not creating loopholes in the rules that would weaken them such that breeders could unfairly qualify for exemptions from licensing or otherwise evade complying with the law and rules. Another 24 individuals and 10 organizations (E, F, H, I, J, N, P, Q, R, U) commented specifically against the American Kennel Club (AKC) attempting to open loopholes in the rules that would reduce protections for dogs and urged the Department not to respond to this pressure.

Fifty-two individuals and 15 organizations (C, D, F, G, H, I, J, K, M, N, P, Q, R, T, U) expressed support for the rules but emphasized their desire that no further changes be made to the rules, stating concern that the rules might be made less stringent if modified. Eight individuals and one organization (S) commented that the rules should be more stringent than currently proposed.

Nine individuals commented that the standards in the rules are very important and must be maintained. Four individuals and two organizations (F, H) commented that the proposed rules will improve the Licensed Breeder program.

Department Response: The Department acknowledges and appreciates the expressions of support for the proposed rules. The Department agrees with the commenters that the rules should not be made less stringent. No changes have been made to the proposed rules in response to these comments.

Comment: Thirty-four individuals and five organizations (D, F, S, T, U) supporting the rules expressed negative feelings toward "unscrupulous" and "unaccountable" animal breeders for causing an animal overbreeding and overpopulation problem in Texas. Thirteen individuals and two organizations (D, H) expressed concern over an increasing number of those animals needing rescue or rehabilitation or being euthanized in Texas.

Seventeen individuals and three organizations (D, H, J) specifically expressed concern about maltreatment, cruelty, substandard care, abuse, or poor living conditions of animals possessed by breeders or so-called "puppy mills."

Sixteen individuals and three organizations (C, H, I) made comments stating that breeders are greedy and make money off of the suffering and poor care given to the animals they possess without regard for the animals' health, well-being, or life.

Department Response: The Department appreciates the commenters' support for the proposed rules and acknowledges the seriousness of their concerns. The Department agrees with the comments pointing out various problems related to the care of animals in Texas and will be working with the public, stakeholders, and the Licensed Breeder Advisory Committee to identify and implement rule or procedure changes, where possible, that will help to address these problems. While the Act imposes minimum standards for the care and treatment of the animals in a licensed breeder's possession, it does not require licensed breeders to ensure that every animal receives a home and does not specify how excess animals must be handled. Legislative action would be required to update the Act to include such subject matter. The Department has made no changes to the proposed rules in response to these comments.

Comment: The American Kennel Club commented that the Department must clarify how the changes to the law and rules regarding applicability and exemptions will be applied to those who own but are not actively breeding five or more intact female dogs. The commenter also asked the Department to explain how the exemption for breed and conformation shows will apply to dogs that are more than six months old but are not yet being shown despite having been bred to be shown.

Department Response: This comment relates to the interpretation of both existing and new provisions in the law and rules. In accordance with §91.21 of the rules, "[E]ach adult intact female animal possessed by a person engaged in the business of breeding animals for direct or indirect sale or for exchange in return for consideration is presumed to be used for breeding purposes unless the person establishes to the satisfaction of the department, based on the person's breeding records or other evidence reasonably acceptable to the department, that the animal is not used for breeding." Section 91.30 states that "a dog bred with the intent that it be used primarily for competing in field trials, hunting tests, breed or conformation shows, or similar organized performance events" may not be counted for purposes of determining the number of adult intact female animals possessed by a person. Possession of an animal is defined as "To have custody of or control over."

The issue of ownership of an animal is irrelevant to determining if the animal is possessed by a breeder. A breeder in possession of adult intact female animals who is in the business of breeding them must demonstrate for each animal that it qualifies for one of the exemptions in the law or that it is not being used for breeding. Otherwise, it must be counted among the animals possessed by that breeder that may subject the breeder to the licensing requirement. An adult intact female dog for which the breeder can demonstrate that it was bred with the intent that it be used primarily for breed or conformation shows or similar organized performance events need not be counted among the animals that may subject the breeder to the licensing requirement. The Department agrees that it is obligated to enforce the law and rules as written, but it is not obligated to prove that exemptions or exceptions apply. No changes to the proposed rules have been made in response to these comments.

Comment: Included in the comments on the proposed rules were a number of concerns regarding issues and subjects that are not within the scope of the proposed rules:

- Three individuals commented that breeders are selling animals for cash, thus avoiding paying state sales tax on potentially hundreds of thousands of dollars per year per breeder.

- Four individuals and two organizations (D, H) commented that the costs associated with breeders' excess animals are being borne by taxpayers, local jurisdictions, and animal welfare organizations and that these costs should be assigned to breeders.

- All breeders of any number of dogs should be required to be licensed and adhere to required ethical breeding standards (S).

- Small-scale service-dog breeders should be exempt from the rules or less stringent rules should be adopted for them or they will be put out of business (O).

- The Licensed Breeder Act applies to both dogs and cats so rules should be adopted to exempt cats bred for breed or conformation shows (O).

- The USDA is failing to enforce and regulate properly under the Animal Welfare Act (AWA) because it is stretched too thin and the AWA standards are too low (D).

Department Response: The Department agrees that the comments raise issues of concern, but it is not currently empowered by the law to address them. The Act does not authorize the Department to regulate outside of the parameters of the Act. At present, the Act does not impose any restrictions regarding cash sales of animals; however, other laws may apply. No requirements are in place for disposition of excess animals by a licensed breeder. Likewise, no mechanism exists in the Act that would enable local jurisdictions or other entities to recoup their costs related to excess animals produced by breeders, so the Department may not create rules to do so.

The number of adult intact female dogs that a breeder possesses that may subject the breeder to the licensing requirement is five or more; therefore, the Department is not authorized to require breeders who possess fewer than five non-exempt dogs to be licensed. Only breeders that are subject to the licensing requirement are required to comply with the Department standards for licensed breeders. The exemptions in the Act do not apply to breeders of service dogs even if they are nonprofit or charitable organizations unless the dogs also qualify for one of the existing exemptions. The Department is not authorized to create exemptions that are not included in the Act. Likewise, the Department may not open the §91.30 exemptions currently available only for breeders of dogs to breeders of cats without such a provision in the Act.

Finally, the Department is required by the Act to adopt into Department rules and enforce the Specifications for the Humane Handling, Care, Treatment, and Transportation of Dogs and Cats, which are minimum federal standards of the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture. The Department rules in §91.23 may waive certain licensing requirements for Texas breeders who hold a Class A or Class B federal animal dealers' license issued under the Animal Welfare Act, but these breeders are obligated to comply with Department rules for standards of care like any other Texas-licensed breeder. A breeder who is subject to both the federal and state license requirements may not violate Department rules regardless of whether that breeder is in compliance with the requirements to hold the federal license. The Department does not have jurisdiction to enforce the federal regulations against a Texas breeder who holds a federal license but may enforce the state rules if that breeder holds or is required to hold a Texas breeder license. The Department has no jurisdiction or control over the operations of the federal APHIS. No changes to the proposed rules have been made in response to these comments.

ADVISORY COMMITTEE RECOMMENDATIONS AND COMMISSION ACTION

The Licensed Breeder Advisory Committee met on November 1, 2023, to discuss the proposed rules and the public comments received. The Advisory Committee recommended that the Commission adopt the proposed rules as published in the Texas Register with changes to §91.80 made in response to a staff recommendation. The word "adult" was inserted in three provisions for internal consistency in the rules. At its meeting on December 1, 2023, the Commission adopted the proposed rules as recommended by the Advisory Committee with minor grammatical edits to §91.53(b), changing "licensee" to "licensees," and §91.53(h), adding "a" to read "a Tier 2 out- of-cycle inspection."

16 TAC §§91.10, 91.20 - 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, 91.90 - 91.92, 91.100 - 91.105, 91.107, 91.112, 91.202

STATUTORY AUTHORITY

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

§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 licensees will be subject to out-of-cycle inspections, the department has established criteria and frequencies for inspections.

(c) The owner of the facility shall pay the fee required under §91.80 for each out-of-cycle inspection.

(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 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 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 also indicate recommended 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 a 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.

§91.62.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 subsection (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).

§91.80.Fees.

(a) Application Fees

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

(A) Original Application--$150

(B) Renewal--$150

(2) Dog or Cat Breeder License, 11-25 Adult Intact Female Animals

(A) Original Application--$300

(B) Renewal--$300

(3) Dog or Cat Breeder License, 26 or more Adult Intact Female Animals

(A) Original Application--$500

(B) Renewal--$500

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

(c) Revised/Duplicate License--$25

(d) Late renewal fees for licenses under this chapter are provided under §60.83.

(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) All fees paid to the department are nonrefundable.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304679

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

STATUTORY AUTHORITY

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304681

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

The Texas Commission of Licensing and Regulation (Commission) adopts 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 adopts a new rule at Subchapter A, §111.3, regarding the Speech-Language Pathologists and Audiologists program, without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5369). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 111 implement 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 Texas Department of Licensing and Regulation (Department).

The adopted rules implement changes made to Texas Occupations Code, Chapter 401 by Senate Bill (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 adopted 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", SB 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 adopted 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 adopted 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 adopted 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.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The adopted rules amend §111.2, Definitions. The adopted rules amend definitions for "fitting and dispensing hearing instruments," "hearing instrument," and "sale" (previously "sale or purchase"); 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 adopted 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 adopted rules amend §111.201, General Practice Requirements of Audiologists and Interns in Audiology Who Fit and Dispense Hearing Instruments.

The adopted 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 adopted rules references new federal rule 21 CFR §801.422, which addresses prescription hearing aids. The adopted rules reflect the changes made by the FDA Hearing Aid Rule.

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

The adopted 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 adopted rules now read 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 adopted 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 adopted rules amend §111.220. Requirements Regarding the Sale of Hearing Instruments.

The adopted rules amend §111.220(b) and §111.220(b)(1) to clarify that the 30-day trial period referenced relates to a hearing instrument.

The adopted 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) was amended, this paragraph was also removed. The remaining paragraphs in this subsection are renumbered.

The adopted 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 the 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.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 22, 2023, issue of the Texas Register (48 TexReg 5369). The public comment period closed on October 23, 2023. The Department received comments from three interested parties on the proposed rules. The public comments are summarized below.

Comment: An individual submitted a comment concurring with the proposed rules and stating that the proposed changes to the medical waiver requirements are timely and necessary based on the FDA changes in the over-the-counter market. The individual expressed appreciation for ensuring that the state licensure requirements are contemporary and consistent with the federal requirements.

Department Response: The Department appreciates the comment in support of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Texas Medical Association (TMA) submitted a combined comment letter on the Speech-Language Pathologists and Audiologists (SPA) proposed rules under 16 TAC Chapter 111 and the Hearing Instrument Fitters and Dispensers (HFD) proposed rules under 16 TAC Chapter 112.

TMA stated that the FDA federal rules for hearing instruments no longer require certain medical evaluations and waivers, and that the Department's proposed rules remove the corresponding medical evaluation requirements in SPA rule §111.201 for an adult prospective hearing aid user. TMA offered the following comments in its letter: "TMA has concerns that removing these requirements will leave adult patients [uninformed] about when it is recommended to undergo medical evaluation for hearing loss. The hearing aid labeling requirements in the new federal rules contain a list of "Red Flag" conditions for which a hearing aid dispenser should refer a prospective hearing aid user to a physician." In summary, TMA commented: "Though the federal rule underlying [the medical evaluation] requirement has been removed, to promote patient safety, TMA recommends that TDLR's adopted rules should still contain the new federal "Red Flag" guidelines for when a patient should be medically evaluated."

TMA recommended that the Department amend SPA rule §111.201 to include new suggested language that tracks the "Red Flag" labeling requirements in new FDA rule §801.422. TMA also recommended making the corresponding change to HFD rule §112.96, either by adding the same new suggested language or by adding a cross-reference to SPA rule §111.201.

Department Response: The Department reviewed the comment, but disagrees with the comment. The Department did not make any changes to the proposed rules in response to this comment for the following reasons.

First, the proposed rules align with the federal FDA rule changes. While the HFD rules did not include the same separate medical evaluation and waiver provisions as the SPA rules, both sets of rules previously required compliance with the former FDA rules 21 CFR §801.420 and §801.421. Former FDA rule §801.420 included the "red flag" conditions, and former FDA rule §801.421 included the medical evaluation and waiver provisions. These two FDA rules were repealed as part of the FDA Hearing Aid Rule, and new FDA rule §801.422 Prescription Hearing Aid Labeling, was adopted. The HFD and SPA proposed rules align with these FDA rule changes.

Second, the Department cannot add new substantive requirements to the rules at this stage of the rulemaking process, since the public has not had notice and opportunity to comment on those substantive changes. If the Department agreed that substantive changes needed to be made, the Department would either have to withdraw the proposed rules, republish them with the new provisions, and start the public comment period over, or the Department would have to add the substantive changes in the future in a separate future rulemaking.

Finally, the suggested changes are unnecessary. The comment suggested adding the requirements regarding the "red flag" conditions from FDA rule 21 CFR §801.422, Prescription Hearing Aid Labeling, into SPA rule §111.201 and HFD rule §112.96. The proposed changes to SPA rule §111.201 and HFD rule §112.96, however, already require compliance with new FDA rule §801.422, which includes the requirements regarding the "red flag" conditions along with other requirements. It is not necessary to have a separate provision in the SPA rules or the HFD rules specifically addressing the "red flag" conditions.

Comment: The Texas Academy of Audiology (TAA) submitted a comment letter in support of the proposed rules. TAA offered the following comments in its letter: (1) TAA stated that the proposed rules bring the rules under 16 TAC Chapter 111 in alignment with the FDA final rule regarding over-the-counter (OTC) hearing aids. (2) TAA appreciates and agrees with the updated definitions that align with the new classifications for OTC hearing aids and prescription hearing aids, along with the other rule changes that follow the definition changes. (3) TAA appreciates the timeliness of the proposed rules and that the proposed rules provide necessary clarifications for practicing audiologists related to OTC hearing aids. (4) TAA agrees with the changes related to the medical waiver requirement as it relates to persons 18 years and older. TAA stated that the medical waiver requirement brought little public health benefit and served as a barrier to hearing healthcare accessibility. The proposed rules align with the FDA's repeal of the requirement in the FDA final rule on OTC hearing aids. (5) TAA agrees with retaining the medical evaluation requirement including a written statement from a physician for persons under age 18. (6) TAA appreciates the clarification to maintain the medical evaluation and the medical evaluation waiver on file if provided.

Department Response: The Department appreciates the comment in support of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Speech-Language Pathologists and Audiologists Advisory Board met on October 31, 2023, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 1, 2023, the Commission adopted the proposed rules as recommended by the Advisory Board and the Department.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §111.2, §111.3

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 401, and 402 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304689

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

16 TAC §111.201

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 401, and 402 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304690

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

16 TAC §111.220

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 401, and 402 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304691

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

The Texas Commission of Licensing and Regulation (Commission) adopts 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 adopts a new rule at Subchapter A, §112.3, regarding the Hearing Instrument Fitters and Dispensers program, without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5375). These rules will not be republished.

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 Texas Department of Licensing and Regulation (Department).

The adopted rules implement changes made to Texas Occupations Code, Chapter 402 by Senate Bill (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 adopted 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," SB 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The adopted rules amend §111.2, Definitions. The adopted rules amend definitions for "fitting and dispensing hearing instruments," "hearing instrument," and "sale" (previously "sale or sell"); 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 including 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 subsection (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 subsection (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 subsection (a).

Subchapter H. Continuing Education Requirements.

The adopted rules amend §112.70. Continuing Education--Hours and Courses. The adopted 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 adopted rules amend §112.92, Consumer Information and Client Records. The adopted rules 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 adopted 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 adopted rule references new federal rule 21 CFR §801.422, which addresses prescription hearing aids. The adopted rules reflect the changes made by the FDA Hearing Aid Rule.

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

The adopted rules amend §112.140. Requirements Regarding the Sale of Hearing Instruments.

The adopted 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 adopted 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 adopted 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.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 22, 2023, issue of the Texas Register (48 TexReg 5375). The public comment period closed on October 23, 2023. The Department received comments from two interested parties on the proposed rules. The public comments are summarized below.

Comment: An individual submitted a comment on proposed new rule §112.3, subsections (a) and (b), regarding Over-the-Counter Hearing Aids. The commenter stated that the proposed rules only apply to people living in Texas, but there are companies and individuals who sell all types of hearing aids to Texas consumers by the internet and by mail. The commenter expressed concerns that out-of-state providers are not required to be licensed in Texas. The commenter asked why people who live in Texas are required to be licensed if they want to sell all types of hearing aids to Texas consumers and asked if a Texas license was optional and not mandatory.

Department Response: The Department reviewed but disagrees with the comment. The Department did not make any changes to the proposed rules in response to this comment for the following reasons.

New rule §112.3, Over-the-Counter Hearing Aids, closely mirrors the provision in Occupations Code, Chapter 402, §402.004, Over-The-Counter Hearing Aids, which was added by SB 2017. The new statute and rules align with FDA rule 21 CFR §800.30, Over-the-counter hearing aid controls, and the federal law, FDA Reauthorization Act of 2017 (H.R. 2430, Public Law 115-52) (Section 709 of the Act, Regulation of Over-the-Counter Hearing Aids).

The proposed rules implement SB 2017 and the federal changes related to over-the-counter hearing aids. As provided by the federal law, the FDA rules, and Occupations Code, Chapter 402, as amended by SB 2017, a person does not need a license under Chapter 402 or 401 to sell or dispense over-the-counter hearing aids.

The proposed rules, however, do not make any changes to the licensing requirements under the Texas statutes or rules related to hearing instruments (prescription hearing aids). A person is still required to be licensed in Texas to fit and dispense hearing instruments (prescription hearing aids) to persons in Texas.

Comment: The Texas Medical Association (TMA) submitted a combined comment letter on the Speech-Language Pathologists and Audiologists (SPA) proposed rules under 16 TAC Chapter 111 and the Hearing Instrument Fitters and Dispensers (HFD) proposed rules under 16 TAC Chapter 112.

TMA stated that the FDA federal rules for hearing instruments no longer require certain medical evaluations and waivers, and that the Department's proposed rules remove the corresponding medical evaluation requirements in SPA rule §111.201 for an adult prospective hearing aid user. TMA offered the following comments in its letter: "TMA has concerns that removing these requirements will leave adult patients [uninformed] about when it is recommended to undergo medical evaluation for hearing loss. The hearing aid labeling requirements in the new federal rules contain a list of "Red Flag" conditions for which a hearing aid dispenser should refer a prospective hearing aid user to a physician." In summary, TMA commented: "Though the federal rule underlying [the medical evaluation] requirement has been removed, to promote patient safety, TMA recommends that TDLR's adopted rules should still contain the new federal "Red Flag" guidelines for when a patient should be medically evaluated."

TMA recommended that the Department amend SPA rule §111.201 to include new suggested language that tracks the "Red Flag" labeling requirements in new FDA rule §801.422. TMA also recommended making the corresponding change to HFD rule §112.96, either by adding the same new suggested language or by adding a cross-reference to SPA rule §111.201.

Department Response: The Department reviewed the comment, but disagrees with the comment. The Department did not make any changes to the proposed rules in response to this comment for the following reasons.

First, the proposed rules align with the federal FDA rule changes. While the HFD rules did not include the same separate medical evaluation and waiver provisions as the SPA rules, both sets of rules previously required compliance with the former FDA rules 21 CFR §801.420 and §801.421. Former FDA rule §801.420 included the "red flag" conditions, and former FDA rule §801.421 included the medical evaluation and waiver provisions. These two FDA rules were repealed as part of the FDA Hearing Aid Rule, and new FDA rule §801.422 Prescription Hearing Aid Labeling, was adopted. The HFD and SPA proposed rules align with these FDA rule changes.

Second, the Department cannot add new substantive requirements to the rules at this stage of the rulemaking process, since the public has not had notice and opportunity to comment on those substantive changes. If the Department agreed that substantive changes needed to be made, the Department would either have to withdraw the proposed rules, republish them with the new provisions, and start the public comment period over, or the Department would have to add the substantive changes in the future in a separate future rulemaking.

Finally, the suggested changes are unnecessary. The comment suggested adding the requirements regarding the "red flag" conditions from FDA rule 21 CFR §801.422, Prescription Hearing Aid Labeling, into SPA rule §111.201 and HFD rule §112.96. The proposed changes to SPA rule §111.201 and HFD rule §112.96, however, already require compliance with new FDA rule §801.422, which includes the requirements regarding the "red flag" conditions along with other requirements. It is not necessary to have a separate provision in the SPA rules or the HFD rules specifically addressing the "red flag" conditions.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Hearing Instrument Fitters and Dispensers Advisory Board met on October 31, 2023, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 1, 2023, the Commission adopted the proposed rules as recommended by the Advisory Board and the Department.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §112.2, §112.3

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 402, and 401 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304685

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

16 TAC §112.70

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 402, and 401 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304686

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

16 TAC §112.92, §112.96

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 402, and 401 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304687

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

16 TAC §112.140

STATUTORY AUTHORITY

The adopted rules are adopted 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 402, and 401 as applicable. No other statutes, articles, or codes are affected by the adopted rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2023.

TRD-202304688

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: January 1, 2024

Proposal publication date: September 22, 2023

For further information, please call: (512) 463-3306

CHAPTER 402. CHARITABLE BINGO OPERATIONS DIVISION

The Texas Lottery Commission (Commission) adopts amendments to 16 TAC §§402.200 (General Restrictions on the Conduct of Bingo), 402.203 (Unit Accounting) 402.400 (General Licensing Provisions), 402.401 (Temporary License), 402.404 (License Classes and Fees), 402.405 (Temporary Authorization), 402.413 (Military Service Members, Military Veterans, and Military Spouses), 402.420 (Qualifications and Requirements for Conductor's License), 402.451 (Operating Capital), 402.452 (Net Proceeds), 402.503 (Bingo Gift Certificates), 402.600 (Bingo Reports and Payments), 402.706 (Schedule of Sanctions), and 402.707 (Expedited Administrative Penalty Guideline) without changes to the proposed text as published in the October 27, 2023, issue of the Texas Register (48 TexReg 6301). The rules will not be republished. The purpose of the amendments is to implement statutory changes required by House Bill 639 (HB 639), Senate Bill 422 (SB 422), and Senate Bill 643 (SB 643) from the Regular Session of the 88th Texas Legislature.

The amendments implementing HB 639 increase the maximum yearly number of temporary bingo licenses that a non-regular authorized organization may receive from 6 to 12.

The amendments implementing SB 422 allow military members to engage in bingo without a license or worker registration for up to three years while they are stationed at a military base in Texas, provided they are similarly licensed or registered and in good standing in another state.

The amendments implementing SB 643 amend the definition of "regular license" to mean a 2-year license to conduct bingo that is not a temporary license; require the Texas Lottery Commission (Commission) to issue to regular licensees 48 temporary licenses (up from 24) for each 12-month period ending on the anniversary of their licensing date; increase the maximum prize value that can be awarded during an occasion from $2,500 to $5,000 and eliminate the $750 prize limit for a single game; allow bingo accounting units three days to deposit bingo funds into their bank account; provide that all of the members of a unit may not be penalized for a violation that is wholly attributable to a specific member or members of the unit; change the required net proceeds period from 12 months to 24 months; and specify that prize fees retained or held in escrow by the authorized organization for remittance to the Commission, a county, or a municipality are not included in the calculation of the organization's operating capital.

On November 13, 2023, the Commission held a public hearing to receive comments on this proposal. No one appeared at the hearing and the Commission did not receive any written comments on the proposed amendments during the public comment period.

SUBCHAPTER B. CONDUCT OF BINGO

16 TAC §402.200, §402.203

The amendments are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act; Texas Government Code §467.102, which authorizes the Commission to adopt rules for the laws under the Commission's jurisdiction; and SB 422 and SB 643, which require the Commission to adopt the rules necessary to implement the changes in the law by December 1st, 2023, and January 1st, 2024, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 15, 2023.

TRD-202304825

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: January 4, 2024

Proposal publication date: October 27, 2023

For further information, please call: (512) 344-5392

16 TAC §§402.400, 402.401, 402.404, 402.405, 402.413, 402.420, 402.451, 402.452

The amendments are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act; Texas Government Code §467.102, which authorizes the Commission to adopt rules for the laws under the Commission's jurisdiction; and SB 422 and SB 643, which require the Commission to adopt the rules necessary to implement the changes in the law by December 1st, 2023, and January 1st, 2024, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 15, 2023.

TRD-202304827

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: January 4, 2024

Proposal publication date: October 27, 2023

For further information, please call: (512) 344-5392

16 TAC §402.503

The amendments are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act; Texas Government Code §467.102, which authorizes the Commission to adopt rules for the laws under the Commission's jurisdiction; and SB 422 and SB 643, which require the Commission to adopt the rules necessary to implement the changes in the law by December 1st, 2023, and January 1st, 2024, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 15, 2023.

TRD-202304828

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: January 4, 2024

Proposal publication date: October 27, 2023

For further information, please call: (512) 344-5392

16 TAC §402.600

The amendments are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act; Texas Government Code §467.102, which authorizes the Commission to adopt rules for the laws under the Commission's jurisdiction; and SB 422 and SB 643, which require the Commission to adopt the rules necessary to implement the changes in the law by December 1st, 2023, and January 1st, 2024, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 15, 2023.

TRD-202304829

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: January 4, 2024

Proposal publication date: October 27, 2023

For further information, please call: (512) 344-5392

16 TAC §402.706, §402.707

The amendments are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act; Texas Government Code §467.102, which authorizes the Commission to adopt rules for the laws under the Commission's jurisdiction; and SB 422 and SB 643, which require the Commission to adopt the rules necessary to implement the changes in the law by December 1st, 2023, and January 1st, 2024, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 15, 2023.

TRD-202304830

Bob Biard

General Counsel

Texas Lottery Commission

Effective date: January 4, 2024

Proposal publication date: October 27, 2023

For further information, please call: (512) 344-5392