Adopted Rules Title 22

TITLE 22. EXAMINING BOARDS

PART 17. TEXAS STATE BOARD OF PLUMBING EXAMINERS

SUBCHAPTER A. GENERAL PROVISIONS

The Texas State Board of Plumbing Examiners (Board) adopts the amendment to 22 Texas Administrative Code, Chapter 361, §361.1(18) relating to the expansion of the definition of direct supervision to include remote virtual, real-time audio-visual communication in limited circumstances. The rule is adopted with a non-substantive change to the proposed text published in the August 30, 2024, issue of the Texas Register (49 TexReg 6698.) The rule will be republished.

REASONED JUSTIFICATION FOR THE RULE

The rules under 22 TAC, Chapter 361, implement Texas Occupations Code, Chapter 1301, Texas State Board of Plumbing Examiners.

The rule amendment expands the definition of direct supervision to include remote virtual supervision under limited conditions.

The Board recognizes that there are not enough plumbing professionals in Texas to serve its growing population and the expanding Texas economy. Homeowners in particular need more service plumbing professionals to do small jobs in a timely and cost-effective manner. This rule amendment aims to help provide greater regulatory flexibility to allow competent professionals, under the supervision of a Responsibility Master Plumber, to make such service calls.

The Board further recognizes that technology with the capability to visually stream or project the job site in real-time, such as Facetime, Zoom, etc., may be successfully utilized to perform on-the-job oversight and direct supervision of apprentices and licensees in the field. It is believed that given the pandemic and related, necessary social-distancing practices, virtual supervision was utilized in the plumbing industry since 2020 as a matter of necessity.

The proposed rule amendment creates the option for a Responsible Master Plumber (RMP) to choose to use remote virtual, audio-visual, real-time supervision in certain conditions to directly supervise work done under their authority and responsibility. Section 361.1(18) of the rules defines "Direct Supervision." On-the-job oversight and supervision is amended to show that direct supervision may include remote virtual audio-visual, real-time communication for registrants and licensees with 4000 hours of documented work and who hold Residential Utilities Installer and Drain Cleaner registrations performing repair and/or replacement of existing fixtures, not involving gas appliances, on one and two family dwellings.

No affirmative duty on or regulation is created by the rule amendment on registrants or licensees. The amended rule does not alleviate the responsibility of the RMP from adequate supervision or from ensuring that work is performed to the standards of the applicable code. It is in the Responsible Master Plumber's discretion to utilize optional technology as they deem it appropriate given their job sites, staff, and technological capacities. Should inspection or investigation be done on the job site, any present licensee or registrant must demonstrate that remote real-time, audio-visual communication is successful and effective.

SECTION BY SECTION SUMMARY

Section 361.1(18) Direct Supervision. On-the-job oversight and supervision is amended to show that direct supervision may include remote virtual audio-visual, real-time communication for registrants and licensees that hold at least 4000 hours of documented experience, a Residential Utilities Installer registration and a Drain Cleaner registration for performing repair and/or replacement of existing fixtures, not involving gas appliances, on one and two family dwellings.

SUMMARY OF COMMENT

Sixty-two comments were received to the posted rule. Two commentors commented in favor of the rule amendment. The remainder opposed the rule. The comment in opposition was largely duplicative and was addressed by the Board together.

On commentor in favor of the amendment stated that it would allow him greater flexibility to supervise. It would also allow him to keep record of dates and times for future reference. The plumbing industry should use new technology to improve the industry.

Response: The Board appreciated and agreed with the comment.

One commentor supported the amendment. He has qualified staff that can work under virtual supervision competently.

Response: The Board appreciated and agreed with the comment.

The comments in opposition largely repeated similar concerns. The summary of comments and the concerns raised are as follows:

PHCC Board of Directors provided comment in opposition to the rule amendment. Virtual Supervision is a poor substitute for in-person supervision and does not adequately train registrants. This rule will allow an untrained individual to do work they are not qualified to perform. PHCC has concerns that the rule change would increase liability to the master plumber who is responsible for the work performed by their apprentice. The amendment raised risk of loss of time and money to homeowners who are seeking repairs that may not be correctly performed. The industry's insurance cost will increase and plumbers' reputation will be damaged when virtually supervised individuals do not have their work supervised in person.

One comment identified that enforcement of the rule would be difficult. No incentive should be provided for a registrant to remain an apprentice and not proceed up the career ladder.

One comment raised the issue that virtual supervision would not work. Tight spaces in plumbing installations would make it difficult to work and hold a phone to show the area to a supervisor who was virtually supervising the remote individual. Additionally, some areas do not have cell service which would not allow virtual supervision. The lack of in-person supervision would raise the risk of property damage or personal injury.

One commentor raised the issue of privacy to homeowners. Many homeowners would not want their homes videoed in a virtually supervised work.

One commentor felt the rule was ambiguous and advocates going back to an earlier rule draft.

One commentor opposed loosening regulation. The amendment provides a disincentive for apprentices to move up the career ladder.

One commentor opposed the rule as it will not have positive effects on the trade and could be potentially dangerous.

One commentor opposed the rule advocating that hands-on training is critical. Supervision should not cut corners with video calls.

One commentor remarked in opposition that virtual supervision will leave apprentices without support. They will make errors and be stressed without the safety net of in-person supervision. They will miss out on training and risk burn-out and leave the trade.

One commentor opposed the amendment because of the negative impact on customer trust and perception of the industry. This negatively impacts professionalism of the industry.

One commentor opposed the amendment because claims of negligence and property damage would increase if an apprentice could not perform or if cell service failed. Claims of discrimination would be made by an apprentice that was physically unable to manipulate a phone or iPad and tools at the same time. The stress caused by lack of in-person oversight would result in employee turnover. Lastly, insurance rates would increase due to increased property damaged caused by errors.

Response: The Board considered and appreciated the comment of all commentors but largely disagreed with the comments in opposition. The Board responded to all the comments in opposition by remarking that this is the third proposed rule effort made by the Board to address virtual supervision over the course of a year. The earlier rule proposals were not adopted, but proposed rule language rather was changed and narrowed in response to similar public input and comment which results in the narrowly crafted rule proposal considered for adoption at this meeting.

The rule draft being considered allows remote, virtual supervision of registrants and licensees that hold 4000 hours of training and two successfully tested endorsements. Additionally, the work that can be virtually supervised is limited to residential repair and replacement on non-gas appliances. This ensures that trained and tested professionals are the only individuals that can work under virtual supervision. Those trained and tested professionals can only work on limited jobs. The higher level of successfully completed training and testing ensures that a newly registered apprentice will not be supervised virtually.

The rule change will have limited impact because there are only approximately 1000 endorsement holders that meet the qualifications at this time. Among those qualified, the sponsoring and supervising Responsible Master Plumber must choose to use to utilize virtual supervision if they feel it their best professional judgement it is appropriate for the job. If they don't feel it is appropriate, they don't have to use it.

The rule amendment is a change in the definition of direct supervision. It does not create an affirmative duty on any individual to engage or not engage in remote supervision. It is simply an option for a Responsible Master Plumber to choose to supervise individuals in a limited circumstance if they decide it is appropriate and beneficial to do so given the job site, staff, and technology available to them. New technology that allows virtual supervision is a modern benefit to the industry should a Responsible Master Plumber feel it is appropriate to use in their discretion.

Local jurisdictions are using virtual inspections of plumbing installations to help service their workload. As such, the use of the technology to review and inspect job sites and work has proven successful and efficient.

Virtual supervision's limited use allows trained and qualified individuals the opportunity to service residential service calls in a timely and cost-effective manner which better serves the public.

Two commentors provided comment that did not address the rule as posted.

BOARD ACTION

At its meeting on December 11, 2024, the Board adopted the proposed rule as published in the Texas Register with the non-substantive inclusion of the word "remote" to clarify the virtual supervision amendment.

STATUTORY AUTHORITY

The rule is adopted under the authority of § 1301.251(2) of the Occupations Code, which requires the Board to adopt and enforce rules necessary to administer and enforce the Plumbing License Law.

§361.1.Definitions.

The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:

(1) APA--The Administrative Procedure Act, Chapter 2001 of the Texas Government Code.

(2) Adopted Plumbing Code--A plumbing code, including a fuel gas code adopted by the Board or a political subdivision, in compliance with §1301.255 and §1301.551 of the Plumbing License Law.

(3) Advisory Committee--A committee appointed by the presiding officer of the board created to assist the board in exercising its powers and duties.

(4) Appliance Connection--An appliance connection procedure using only a code-approved appliance connector that does not require cutting into or altering the existing plumbing system.

(5) Applicant--An individual seeking to obtain a license, registration or endorsement issued by the Board.

(6) Board--The Texas State Board of Plumbing Examiners.

(7) Board Member--An individual appointed by the governor and confirmed by the senate to serve on the Board.

(8) Building Sewer--The part of the sanitary drainage system outside of the building, which extends from the end of the building drain to a public sewer, private sewer, private sewage disposal system, or other point of sewage disposal.

(9) Certificate of Insurance--A form submitted to the Board certifying that the Responsible Master Plumber carries insurance coverage as specified in the Plumbing License Law and Board Rules.

(10) Chief Examiner--An employee of the Board who, under the direction of the Executive Director, coordinates and supervises the activities of the Board examinations and registrations.

(11) Cleanout--A fitting, other than a p-trap, approved by the adopted plumbing code and designed to be installed in a sanitary drainage system to allow easy access for cleaning the sanitary drainage system.

(12) Code-Approved Appliance Connector--A semi-rigid or flexible assembly of tube and fittings approved by the adopted plumbing code and designed for connecting an appliance to the existing plumbing system without cutting into or altering the existing plumbing system.

(13) Code-Approved Existing Opening--For the purposes of drain cleaning activities described in §1301.002(3) of the Plumbing License Law, a code-approved existing opening is any existing cleanout fitting, inlet of any p-trap or fixture, or vent terminating into the atmosphere that has been approved and installed in accordance with the adopted plumbing code.

(14) Complaint--A written complaint filed with the Board against a person whose activities are subject to the jurisdiction of the Board.

(15) Contested Case--A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the Board after an opportunity for adjudicative hearing.

(16) Continuing Professional Education or CPE--Approved courses/programs required for a licensee or registrant.

(17) Director of Enforcement--An employee of the Board who meets the definition of "Field Representative" and, under the direction of the Executive Director, coordinates and supervises the activities of the Field Representatives.

(18) Direct Supervision--

(A) The on-the-job oversight and direction of a registered Plumber's Apprentice or licensee performing plumbing work by a licensed plumber who is fulfilling his or her responsibility to the client and employer by ensuring the following:

(i) that the plumbing materials for the job are properly prepared prior to assembly according to the material manufacturers recommendations and the requirements of the adopted plumbing code; and

(ii) that the plumbing work for the job is properly installed to protect health and safety by meeting the requirements of the adopted plumbing code and all requirements of local and state ordinances, regulations and laws.

(iii) Direct supervision may include remote virtual audio-visual, real-time communication for repair and replacement of existing fixtures, not involving gas appliances, on one and two family dwellings performed only by licensees and registrants with:

(I) 4000 hours of documented experience;

(II) a current Residential Utilities Installer Registration; and

(III) a current Drain Cleaner registration.

(B) The on-the-job oversight and direction by a licensed Plumbing Inspector of an individual training to qualify for the Plumbing Inspector Examination.

(C) For plumbing work performed only in the construction of a new one-family or two-family dwelling in an unincorporated area of the state, a Responsible Master Plumber is not required to provide for the continuous or uninterrupted on-the-job oversight of a Registered Plumber's Apprentice's work by a licensed plumber, however, the Responsible Master Plumber must:

(i) provide for the training and management of the Registered Plumber's Apprentice by a licensed plumber;

(ii) provide for the review and inspection of the Registered Plumber's Apprentice's work by a licensed plumber to ensure compliance with subparagraph (A)(i) and (ii) of this paragraph; and

(iii) upon request by the Board, provide the name and plumber's license number of the licensed plumber who is providing on-the-job training and management of the Registered Plumber's Apprentice and who is reviewing and inspecting the Registered Plumber's Apprentice's work on the job, or the name and plumber's license number of the licensed plumber who trained and managed the Registered Plumber's Apprentice and who reviewed and inspected the Registered Plumber's Apprentice's work on a job.

(19) Endorsement--A certification issued by the Board as an addition to a Master Plumber, Plumbing Inspector, or Journeyman Plumber License or a Plumber's Apprentice Registration, including a Drain Cleaner Registration, a Drain Cleaner-Restricted Registration, and a Residential Utilities Installer Registration.

(20) Executive Director--The executive director of the Texas State Board of Plumbing Examiners who is employed by the Board as the executive head of the agency.

(21) Field Representative--An employee of the Board who is:

(A) knowledgeable of the Plumbing License Law and of municipal ordinances related to plumbing;

(B) qualified by experience and training in good plumbing practice and compliance with the Plumbing License Law;

(D) licensed by the Board as a plumber; and

(E) hired to:

(i) make on-site license and registration checks to determine compliance with the Plumbing License Law;

(ii) investigate complaints; and

(iii) assist municipal plumbing inspectors in cooperative enforcement of the Plumbing License Law.

(22) Journeyman Plumber--An individual licensed under the Plumbing License Law who has met the qualifications for registration as a Plumber's Apprentice or for licensure as a Tradesman Plumber-Limited, who has completed at least 8,000 hours working under the supervision of a Responsible Master Plumber, who supervises, engages in, or works at the actual installation, alteration, repair, service and renovating of plumbing, and who has successfully fulfilled the examinations and requirements of the Board.

(23) License--A license, registration, certification, or endorsement issued by the Board.

(24) Licensing and Registering--The process of granting, denying, renewing, reinstating, revoking, or suspending a license, registration or endorsement.

(25) Maintenance Man or Maintenance Engineer--An individual who:

(A) is an employee, and not an independent contractor or subcontractor;

(B) performs plumbing maintenance work incidental to and in connection with other employment-related duties; and

(D) For the purposes of paragraph 25(B), "incidental to and in connection with" includes the repair, maintenance and replacement of existing potable water piping, existing sanitary waste and vent piping, existing plumbing fixtures and existing water heaters. It does not include cutting into fuel gas plumbing systems and the installation of gas fueled water heaters.

(E) An individual who erects, builds, or installs plumbing not already in existence may not be classified as a maintenance man or maintenance engineer. Plumbing work performed by a maintenance man or maintenance engineer is not exempt from state law and municipal rules and ordinances regarding plumbing codes, plumbing permits and plumbing inspections.

(26) Master Plumber--An individual licensed under the Plumbing License Law who is skilled in the design, planning, superintending, and the practical installation, repair, and service of plumbing, who is knowledgeable about the codes, ordinances, or rules and regulations governing those matters, who alone, or through an individual or individuals under his supervision, performs plumbing work, and who has successfully fulfilled the examinations and requirements of the Board.

(27) Medical Gas Piping Installation Endorsement--

(A) A certification entitling the holder of a Master or Journeyman Plumber License to install piping that is used solely to transport gases used for medical purposes including, but not limited to, oxygen, nitrous oxide, medical air, nitrogen, or medical vacuum.

(B) A certification entitling the holder of a Plumbing Inspector License to inspect medical gas and vacuum system installations.

(28) Multipurpose Residential Fire Protection Sprinkler Specialist Endorsement--

(A) A certification entitling the holder of a Master or Journeyman Plumber License to install a multipurpose residential fire protection sprinkler system in a one or two family dwelling.

(B) A certification entitling the holder of a Plumbing Inspector License to inspect a multipurpose residential fire protection sprinkler system.

(29) Military service member--A person who is currently serving in the armed forces of the United States, in a reserve component of the armed forces of the United States, including the National Guard, or in the state military service of any state.

(30) Military spouse--A person who is married to a military service member who is currently on active duty.

(31) Military veteran--A person who has served in the army, navy, air force, marine corps, or coast guard of the United States, or in an auxiliary service of one of those branches of the armed forces.

(32) One-Family Dwelling--A detached structure designed for the residence of a single family that does not have the characteristics of a multiple family dwelling, and is not primarily designed for transient guests or for providing services for rehabilitative, medical, or assisted living in connection with the occupancy of the structure.

(33) Party--A person or state agency named or admitted as a party to a contested case.

(34) Paid Directly--As related to §1301.255(e) of the Plumbing License Law, "paid" and "directly" have the common meanings and "paid directly" means that compensation for plumbing inspections must be paid by the political subdivision to the individual Licensed Plumbing Inspector who performed the plumbing inspections or the plumbing inspection business which utilized the plumbing inspector to perform the inspections.

(35) Person--An individual, partnership, corporation, limited liability company, association, governmental subdivision or public or private organization of any character other than an agency.

(36) Petitioner--A person requesting the Board to adopt, amend or repeal a rule pursuant to §2001.021 of the Texas Government Code and the Board Rules.

(37) Plumbing--

(A) All piping, fixtures, appurtenances, and appliances, including disposal systems, drain or waste pipes, multipurpose residential fire protection sprinkler systems or any combination of these that: supply, distribute, circulate, recirculate, drain, or eliminate water, gas, medical gasses and vacuum, liquids, and sewage for all personal or domestic purposes in and about buildings where persons live, work, or assemble; connect the building on its outside with the source of water, gas, or other liquid supply, or combinations of these, on the premises, or the water main on public property; and carry waste water or sewage from or within a building to the sewer service lateral on public property or the disposal or septic terminal that holds private or domestic sewage.

(B) The installation, repair, service, maintenance, alteration, or renovation of all piping, fixtures, appurtenances, and appliances on premises where persons live, work, or assemble that supply gas, medical gasses and vacuum, water, liquids, or any combination of these, or dispose of waste water or sewage. Plumbing includes the treatment of rainwater to supply a plumbing fixture or appliance. The term "service" includes, but is not limited to, cleaning a drain or sewer line using a cable or pressurized fluid.

(38) Plumbing Company--A person who engages in the plumbing business.

(39) Plumbing Inspection--Any of the inspections required in the Plumbing License Law, including any check of multipurpose residential fire protection sprinkler systems, pipes, faucets, tanks, valves, water heaters, plumbing fixtures and appliances by and through which a supply of water, gas, medical gasses or vacuum, or sewage is used or carried that is performed on behalf of any political subdivision, public water supply, municipal utility district, town, city or municipality to ensure compliance with the adopted plumbing and gas codes and ordinances regulating plumbing.

(40) Plumbing Inspector--Any individual who is employed by a political subdivision or state agency, or who contracts as an independent contractor with a political subdivision or state agency, for the purpose of inspecting plumbing work and installations in connection with health and safety laws, ordinances, and plumbing and gas codes, who has no financial or advisory interests in any plumbing company, and who has successfully fulfilled the examinations and requirements of the Board.

(41) Plumbing License Law or PLL--Chapter 1301 of the Texas Occupations Code.

(42) Pocket Card--A card issued by the Board which:

(A) certifies that the holder has a Responsible Master Plumber License, Master Plumber License, Journeyman Plumber License, Tradesman Plumber-Limited License, Plumbing Inspector License, or a Plumber's Apprentice Registration; and

(B) lists any Endorsements obtained by the holder.

(43) Political Subdivision--A political subdivision of the State of Texas that includes a:

(A) city;

(B) county;

(D) junior college district;

(E) municipal utility district;

(F) levee improvement district;

(G) drainage district;

(H) irrigation district;

(I) water improvement district;

(J) water control improvement district;

(K) water control preservation district;

(L) freshwater supply district;

(M) navigation district;

(N) conservation and reclamation district;

(O) soil conservation district;

(P) communication district;

(Q) public health district;

(R) river authority; and

(S) any other governmental entity that:

(i) embraces a geographical area with a defined boundary;

(ii) exists for the purpose of discharging functions of government; and

(iii) possesses authority for subordinate self-government through officers selected by it.

(44) P-Trap--A fitting connected to the sanitary drainage system for the purpose of preventing the escape of sewer gasses from the sanitary drainage system and designed to be removed to allow for cleaning of the sanitary drainage system. For the purposes of drain cleaning activities described in §1301.002(2) of the Plumbing License Law, a p-trap includes any integral trap of a water closet, bidet, or urinal.

(45) Public Water System--A system for the provision to the public of water for human consumption through pipes or other constructed conveyances. Such a system must have at least 15 service connections or serve at least 25 individuals at least 60 days out of the year. Two or more systems with each having a potential to serve less than 15 connections or less than 25 individuals, but owned by the same person, firm, or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or greater, at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if the individual lives in, uses as the individual's place of employment, or works in a place to which drinking water is supplied from the water system.

(46) Respondent--A person charged in a complaint filed with the Board.

(47) Responsible Master Plumber or RMP--A licensed Master Plumber who:

(A) allows the person's Master Plumber License to be used by only one plumbing company for the purpose of offering and performing plumbing work;

(B) is authorized to obtain permits for plumbing work;

(D) has submitted a certificate of insurance as required by the Plumbing License Law and Board Rules; and

(E) When used in Board forms, applications or other communications by the Board, the abbreviation "RMP" shall mean Responsible Master Plumber.

(48) Registration--A document issued by the Board to certify that the named individual fulfilled the requirements of the PLL and Board Rules to register as a Plumber's Apprentice.

(49) Rule--An agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule but does not include statements concerning only the internal management or organization of the agency and not affecting private rights or procedures.

(50) Supervision--The general oversight, direction and management of plumbing work and individuals performing plumbing work by a Responsible Master Plumber, or licensed plumber designated by the RMP.

(51) System--An interconnection between one or more public or private end users of water, gas, sewer, or disposal systems that could endanger public health if improperly installed.

(52) Tradesman Plumber-Limited Licensee--An individual who has completed at least 4,000 hours working under the direct supervision of a Journeyman or Master Plumber as a registered Plumber's Apprentice, who has passed the required examination and fulfilled the other requirements of the Board, or successfully completed a career and technology education program, who constructs, installs, changes, repairs, services, or renovates plumbing for one-family or two-family dwellings under the supervision of a Responsible Master Plumber, and who has not met or attempted to meet the qualifications for a Journeyman Plumber License.

(53) Two-Family Dwelling--A detached structure with separate means of egress designed for the residence of two families ("duplex") that does not have the characteristics of a multiple family dwelling and is not primarily designed for transient guests or for providing services for rehabilitative, medical, or assisted living in connection with the occupancy of the structure.

(54) Water Supply Protection Specialist--A Master or Journeyman Plumber who holds the Water Supply Protection Specialist Endorsement issued by the Board to engage in customer service inspections, as defined by rule of the Texas Commission on Environmental Quality, and the installation, service, and repair of plumbing associated with the treatment, use, and distribution of rainwater to supply a plumbing fixture or appliance.

(55) Water Treatment--A business conducted under contract that requires experience in the analysis of water, including the ability to determine how to treat influent and effluent water, to alter or purify water, and to add or remove a mineral, chemical, or bacterial content or substance. The term also includes the installation and service of potable water treatment equipment in public or private water systems and making connections necessary to complete installation of a water treatment system. The term does not include treatment of rainwater or the repair of systems for rainwater harvesting.

(56) Yard Water Service Piping--The building supply piping carrying potable water from the water meter or other source of water supply to the point of connection to the water distribution system at the building.

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

Filed with the Office of the Secretary of State on January 13, 2025.

TRD-202500075

Patricia Latombe

General Counsel

Texas State Board of Plumbing Examiners

Effective date: February 2, 2025

Proposal publication date: August 30, 2024

For further information, please call: (512) 936-5216