Adopted Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter B, §60.23; and Subchapter C, §60.33 and §60.34; adopts the repeal of existing rules at Subchapter C, §60.30 and §60.31; and Subchapter E, §§60.50 - 60.54; and adopts new rules at Subchapter C, §§60.30, 60.31, and 60.37; and Subchapter E, §§60.50 - 60.56, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the August 23, 2024, issue of the Texas Register (49 TexReg 6372). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 60 implement Texas Occupations Code, Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Texas Department of Licensing and Regulation (Department), and other laws applicable to the Commission and the Department. The Chapter 60 rules are the procedural rules of the Commission and the Department. These rules apply to all of the agency's programs and to all license applicants and licensees, except where there is a conflict with the statutes and rules of a specific program.

The adopted rules update multiple subchapters and sections under Chapter 60 and are part of a larger effort to update the entire chapter. The adopted rules make substantive and clean-up changes to the agency's procedural rules and include changes resulting from staff and strategic planning, the required four-year rule review, and the Department's Sunset legislation.

Staff and Strategic Planning Changes

The adopted rules include changes suggested by the General Counsel's Office and suggested during past strategic planning sessions. The changes include updates to the rules regarding license applications, renewals, and denials; criminal history background checks; foreign transcripts and degrees; temporary licenses; voluntary license surrender; examination rescheduling, accommodations, and results; and reexaminations. The changes also include reorganization of existing rules, and editorial changes to "Commission," "Department," and "Executive Director" to use lower case terminology to be consistent with the statutes and consistent across the Chapter 60 rule subchapters.

Four-Year Rule Review Changes

The adopted rules also include changes as a result of the required four-year rule review conducted under Texas Government Code §2001.039. The Department conducted the required rule review of the rules under 16 TAC Chapter 60, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Review, 46 TexReg 2589, April 16, 2021. Adopted Rule Review, 46 TexReg 4701, July 30, 2021).

In response to the Notice of Intent to Review that was published, the Department received public comments from six interested parties regarding Chapter 60, but none of those public comments relate to the rules in this proposal.

The adopted rules include changes identified by Department staff during the rule review process. The changes are reflected throughout the adopted rules and include updates to the rules regarding initial license applications; criminal history background checks; license renewals; late renewals; temporary licenses; substantially equivalent license requirements; and the examination-related requirements. The changes also include clarifying the rules, using plain talk language, and making the same editorial changes to use lower case terminology.

Sunset Bill Statutory Changes

The adopted rules incorporate and reflect the changes made to Texas Occupations Code, Chapter 51, as a result of House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Department's Sunset legislation. HB 1560, Article 1, Section 1.10, added §51.359, Refunds, to Chapter 51. The adopted rules add refunds into the list of possible disciplinary actions that may be imposed by the Commission or the Executive Director.

The adopted rules are necessary to: update the rules regarding the sanction authority of the Commission and the Executive Director; update and supplement the requirements and the procedures for initial and renewal license applications; clarify the temporary license authority and applicability; update and clarify the substantially equivalent license requirements and procedures; add procedures for the voluntary surrender of a license; update and supplement the requirements and procedures regarding license examinations; and reorganize and clean up existing rules where necessary.

SECTION-BY-SECTION SUMMARY

Subchapter B. Powers and Responsibilities.

The adopted rules amend §60.23, Commission and Executive Director--Imposing Sanctions and Penalties. The adopted rules amend subsection (a) to remove the inspection and investigation provision under paragraph (3). This provision implements Texas Occupations Code §51.351, Inspections and Investigations, but more comprehensive rules have been added to Chapter 60, Subchapter H, under §60.203, Cooperation with Investigation of Complaints, and §60.222, Cooperation with Inspections. The provision under §60.23(a)(3) is no longer necessary and is being repealed. The subsequent paragraphs under subsection (a) have been renumbered.

The adopted rules amend subsection (b) to add new paragraph (7), which incorporates the statutory authority of the Commission and the Executive Director under Texas Occupations Code §51.359 to order refunds to consumers. This new statutory authority was added by HB 1560. The adopted rules renumber the subsequent paragraph and make technical changes to the provisions under paragraphs (6) and (8).

Subchapter C. License Applications and Renewals.

The adopted rules repeal existing §60.30, Initial License Applications. The provisions in this repealed rule have been updated and supplemented under new §60.30, Initial License Applications.

The adopted rules add new §60.30, Initial License Applications. This new rule includes provisions from existing §60.30, which is being repealed, and updates and supplements the current requirements and procedures for initial license applications. The adopted rules update the existing provision under subsection (a) regarding the items required to be submitted for an initial license application; update the existing provision under subsection (b) regarding an incomplete initial application that includes the right to request a hearing; and add a new provision under subsection (c) regarding an insufficient or not qualified initial application that includes the right to request a hearing. The adopted rules add a new provision under subsection (d) that reflects the current requirements and processes regarding criminal history background checks for initial licenses for individuals and businesses; and add a new provision under subsection (e) that standardizes the process and requirements regarding applicants with foreign transcripts or foreign degrees. The adopted rules add a new provision under subsection (f) regarding the denial of an initial license application or denial of the opportunity to take an examination that links the denial under Subchapter C to the contested case process and rules under Subchapter I. This provision reflects the requirements under Texas Government Code §2001.054, Licenses, and Texas Occupations Code §51.354, Right to Hearing; Administrative Procedure.

The adopted rules repeal existing §60.31, License Renewal Applications. The provisions in this repealed rule have been updated and supplemented under new §60.31, License Renewal Applications.

The adopted rules add new §60.31, License Renewal Applications. This new rule includes provisions from existing §60.31, which is being repealed, and updates and supplements the current requirements and procedures for license renewal applications. The adopted rules update the existing provisions under subsections (a) - (c) regarding the license renewal notice, the items required to be submitted for license renewal, and the requirements that must be completed before the license expires. The adopted rules add a new provision under subsection (d) that clarifies that if a person completes all the renewal requirements and pays the renewal fees as prescribed, the license will not expire. This provision addresses situations where the license holder has met all the requirements, but the renewal is still being processed by the Department. The adopted rules update the existing provisions under subsection (e) to reiterate that if a person does not complete all the renewal requirements and pay the required renewal fee as prescribed, the license will expire and the person may not perform any act that requires a license. The adopted rules add a new provision under subsection (f) that reflects the current requirements and processes regarding criminal history background checks for license renewals for individuals and businesses.

The adopted rules update and expand the existing late renewal provisions under subsection (g) to address late license renewals that fall within the late renewal deadlines established in Texas Occupations Code §51.401. This subsection includes references to the statutory late renewal deadlines; specifies the requirements for late renewing a license; explains that a person with a late renewal has a gap in licensure and may not perform tasks that require a license; and prohibits a person from obtaining a new license if the person is still eligible to late renew the existing license. A person may not apply for a new license to avoid paying the higher late renewal fees and completing any required continuing education.

The adopted rules update the existing provisions under subsection (h) to address the situation involving a person whose license has expired beyond the late renewal deadlines established in Texas Occupations Code §51.401. A person who does not meet these statutory deadlines must apply for a new license and comply with the requirements for obtaining an original license, including any examination requirements and the payment of fees. The adopted rules clarify that a person must retake any licensing examinations required to apply for a new license and that any previous licensing examination results will not be accepted. This provision implements the statutory provisions under Texas Occupations Code §51.401(d) and reflects the Department's interpretation of those provisions.

The adopted rules add a new provision under subsection (i) to address the situation involving a person who was previously licensed in Texas and is currently licensed and practicing in another state. Under this provision, a person who meets the specified eligibility conditions may obtain a new Texas license without reexamination. The person must pay a fee that is two times the required renewal fee for the license. This provision reflects the statutory provisions under Texas Occupations Code §51.401(e) and incorporates this situation into the rules with the other licensing situations.

The adopted rules add a new provision under subsection (j) regarding the denial of a license renewal application that links the denial under Subchapter C to the contested case process and rules under Subchapter I. This provision reflects the requirements under Texas Government Code §2001.054, Licenses, and Texas Occupations Code §51.354, Right to Hearing; Administrative Procedure.

The adopted rules amend existing §60.33, Temporary License. The adopted rules update and clarify the existing rule in accordance with Texas Occupations Code §51.407, Temporary License. The adopted rules change the title of the section from "Temporary License Applications" to "Temporary License." The adopted rules add new subsection (a), which includes statutory authority language and clarifying language regarding the applicability of this rule, and they add new subsection (f), which states that a temporary license holder is subject to the specified statutes and rules of the Department and the applicable program. The adopted rules also re-letter the subsections and update a cross-reference.

The adopted rules amend existing §60.34, Substantially Equivalent License Requirements. The adopted rules update and clarify the substantially equivalent license requirements and procedures. The adopted rules update the applicability provision under subsection (a)(1) to reflect the statutory provisions under Texas Occupations Code §51.4041, Alternative Qualifications for License; and update subsection (a)(2) to use parallel construction. The adopted rules add new subsection (b) to define "another jurisdiction" or "other jurisdiction" for purposes of this section; add new subsection (e) that allows the Department to request additional documents or information in order to evaluate the substantially equivalent criteria; and add new subsection (f) to clarify that the Department has the final authority to determine substantially equivalent. The adopted rules also re-letter the existing subsections as necessary and update the terminology throughout the section.

The adopted rules add new §60.37, Voluntary Surrender of a License. The adopted rules add new procedures for the voluntary surrender of a license in accordance with the guidance provided under Texas Attorney General Opinion KP-0080 (May 3, 2016). The adopted rules make the license surrender process a standardized, administrative process and separate the voluntary license surrender process from any enforcement or disciplinary actions or process. The adopted rules allow a license holder to voluntarily surrender a license; establish the conditions under which the surrender request will be granted; provide that surrendering the license is not a defense and does not affect any investigation or disciplinary action; and provide that a voluntarily-surrendered license may not be renewed and that any license fees paid will not be refunded.

Subchapter E. Examinations.

The adopted rules under Subchapter E update and supplement the requirements and procedures regarding license examinations and address all aspects of the examination process. The existing rules under §§60.50 - 60.54 are being repealed and replaced with new rules under §§60.50 - 60.56.

The adopted rules repeal existing §60.50, Examination Rescheduling. The provisions in this repealed rule have been incorporated into new §60.51, Examination Scheduling and Rescheduling.

The adopted rules add new §60.50, Examination Providers. The adopted rules explain the Department's delegation of its statutory authority and responsibilities to provide or administer licensing examinations through a contracted third-party examination provider. The adopted rules state that the Department's examination provider must comply with all statutes and rules applicable to the Department regarding examinations and that the Department's examination provider serves as the point of contact for examination candidates. The adopted rules explain the applicability of the provisions in this subchapter.

The adopted rules repeal existing §60.51, Examination Fee Refund. The provisions in this repealed rule have been incorporated into new §60.52, Examination Fees and Refunds.

The adopted rules add new §60.51, Examination Scheduling and Rescheduling. The new rule includes provisions from existing §60.50, Examination Rescheduling, which is being repealed. The adopted rules under this section implement provisions under Texas Occupations Code §51.403, Examination Fee Refund, and Texas Occupations Code §54.002, Examination Scheduled on Religious Holy Day. The adopted rules under subsection (a) establish the requirements for scheduling an examination and direct the examination candidate to schedule the examination directly with the Department's examination provider, subject to the availability of examination appointments.

The adopted rules under subsection (b) establish the requirements for canceling and rescheduling an examination and direct the examination candidate to notify the Department's examination provider directly to cancel and reschedule an examination. The adopted rules provide that an examination candidate may cancel and reschedule an examination for any reason, which would include for religious holy days, as provided under Texas Occupations Code §54.002. The reason for canceling and rescheduling an examination does not need to be reviewed or approved by the Department or its examination provider. The adopted rules also provide the requirements for canceling and rescheduling an examination at no charge and define what "emergency" means for purposes of this section as required by Texas Occupations Code §51.403. The examination may be rescheduled subject to the availability of examination appointments.

The adopted rules repeal existing §60.52, Examination Security. The provisions in this repealed rule have been incorporated into new §60.54, Examination Security.

The adopted rules add new §60.52, Examination Fees and Refunds. This new rule includes provisions from existing §60.51, Examination Fee Refund, which is being repealed. The adopted rules under this section implement provisions under Texas Occupations Code §51.402, Examinations, and Texas Occupations Code §51.403, Examination Fee Refund. The adopted rules under subsection (a) require an examination candidate to pay the examination fee to the Department's examination provider and explain that information about the examination and the examination provider will be posted on the Department's website. The adopted rules under subsection (b) address an examination candidate who is unable to take the examination and who wants to obtain a refund of the examination fee. The adopted rules provide the requirements for requesting a refund and define what "reasonable notice" and "emergency" are for purposes of this section as required by Texas Occupations Code §51.403.

The adopted rules repeal existing §60.53, Access to Examinations. The provisions in this repealed rule have been incorporated into new §60.53, Examination Accommodations.

The adopted rules add new §60.53, Examination Accommodations. This new rule includes and expands the provisions under existing §60.53, Access to Examinations, which is being repealed. The adopted rules under this section include the procedures for requesting examination accommodations in accordance with the Americans with Disabilities Act (ADA) of 1990, its regulations, and any subsequent amendments; Texas Occupations Code §54.003, Examination Accommodations for Person with Dyslexia; and Texas Attorney General Opinion JC-0050 (May 17, 1999). Dyslexia is included and covered under the ADA, so the procedures in this rule implement both statutes and address any requests for examination accommodations.

The adopted rules update the existing provisions under subsection (a) to update the citation to the ADA and to clarify that the Department's examination provider will provide reasonable accommodations for an examination administered to an examination candidate with a disability. The adopted rules add new provisions under subsection (b) that provide the required procedures for requesting reasonable accommodations for an examination. The adopted rules update the existing provisions under subsection (c) to require that the written request for an examination in a foreign language be submitted before scheduling the examination.

The adopted rules repeal existing §60.54, Examination Results. The provisions in this repealed rule have been replaced with new §60.56, Validity and Acceptance of Examination Results; Reexamination.

The adopted rules add new §60.54, Examination Security. This new rule includes provisions from existing §60.52, Examination Security, which is being repealed. The adopted rules update existing provisions under subsection (a) to require an examination candidate to comply with all examination security requirements of any examination provider; update the existing provisions under subsection (b) to address the use of specified methods of assistance if available; update the existing provisions under subsection (c) to add activities to the list of conduct that violate the examination security rule; and update the existing provision under subsection (d) to provide that the contents of a license examination are confidential. The adopted rules add new provisions under subsection (e) to address the consequences if a person is caught during the examination violating the examination security rule; and add new provisions under subsection (f) to address the consequences if the person is found to have violated the examination security rule.

The adopted rules add new §60.55, Examination Results. This new rule implements Texas Occupation Code §51.402, Examinations. The adopted rules under subsections (a) - (b) require the Department's examination provider to notify a person regarding the person's examination results not later than 30 days after the examination, and to provide an explanation if the results will be delayed for longer than 90 days. The adopted rules under subsection (c) state that a person will receive an analysis of the person's performance on the examination from the examination provider. While the statute allows a person who fails a license examination the right to request in writing an analysis of the person's performance on the examination, in practice any person taking an examination automatically receives a diagnostic report from the examination provider, without the need to submit a written request to receive the analysis, and regardless of whether the person fails or passes the examination. The adopted rules under subsection (d) prohibit a person from presenting falsified or fraudulent documents concerning the person's examination results. This provision has been relocated from existing §60.52, Examination Security, which is being repealed.

The adopted rules add new §60.56, Validity and Acceptance of Examination Results; Reexamination. This new rule replaces existing §60.54, Examination Results, which is being repealed, and which provides that examination results are valid for one year from the date of the examination, unless stated otherwise in specific program statutes or rules. New §60.56 extends the one year period for how long the examination results are valid for new license applicants who have never held a Texas license. New §60.56 makes a distinction between new license applicants who have never held a Texas license and license applicants who previously held a Texas license and are applying for a new license. The distinctions are necessary and required due to Occupation Code §51.401, License Expiration and Renewal, for expired licenses, and due to Occupations Code, Chapters 51 and 53, and Texas Attorney General Opinion GA-0064 (April 28, 2003) for revoked licenses.

The adopted rules under subsection (a) state the purpose and applicability of new §60.56, which addresses the validity and acceptance of licensing examination results and whether a person must retake a licensing examination.

The adopted rules under subsection (b) address examination results for a person who is applying for a new license issued by the Department and who has not previously held that license. The adopted rules extend the time period examination results are valid from one year to four or five years, depending on the term of the license sought. After this time period, a person must retake any examinations required to apply for a new license. Any previous licensing examination results will not be accepted. This change recognizes that the current one-year time limit is too restrictive, but it also recognizes that occupations and professions may change over the years and that an old examination may not be testing on today's issues. The examination serves as proof of competency, so the examination results cannot be valid indefinitely.

The adopted rules under subsection (c) address examination results for a person who previously held a Texas license and is applying for a new license. The adopted rules address previous examination results and whether the person has to take any required licensing examinations again. As explained under subsection (c)(1), the adopted rules group the different situations involving previous license holders into one subsection, and the specific situations are addressed in each paragraph. The adopted rules reflect the Department's interpretation of the statutory provisions under Texas Occupations Code, Chapters 51 and 53, and Texas Attorney General Opinion GA-0064. These provisions prevent the examination expiration dates under subsection (b) from applying to the situations under subsection (c).

The adopted rules under subsection (c)(2) address the situation involving a person whose license has expired beyond the late renewal deadlines established in Texas Occupations Code §51.401. A person who does not meet these statutory deadlines must apply for a new license and comply with the requirements for obtaining an original license, including any examination requirements and the payment of fees. The adopted rules clarify that a person must retake any licensing examinations required to apply for a new license and that any previous licensing examination results will not be accepted. This provision implements the statutory provisions under Texas Occupations Code §51.401(d).

The adopted rules under subsection (c)(3) address the situation involving a person who was previously licensed in Texas and is currently licensed and practicing in another state. Under this provision, a person who meets the specified eligibility conditions may obtain a new Texas license without reexamination. This provision reflects the statutory provisions under Texas Occupations Code §51.401(e).

The adopted rules under subsection (c)(4) address the situation involving a person whose license was revoked. This provision provides the general rule that a person whose license has been revoked must retake any examinations required to apply for a new license. Any previous licensing examination results will not be accepted. The provision also provides a limited exception for a person who reapplies for licensure after having a license revoked solely for failure to pay an administrative penalty or failure to pay an insufficient funds fee. Under this exception, the person will not be required to retake an examination required to apply for a new license, but only if the person's license has been in a revoked status for less than three years at the time of the new application. The adopted rules reflect the Department's interpretation of Texas Occupations Code, Chapters 51 and 53; Texas Attorney General Opinion GA-0064; the existing rule under §60.36; and the Department's policy regarding revocations and retaking an examination pursuant to Texas Occupations Code §51.355 and existing rule §60.36.

The adopted rules under subsection (c)(5) address the situation involving a person who was previously licensed in Texas but voluntarily surrendered the person's Texas license. Under this provision, the person may obtain a new license by complying with the requirements and procedures, including the examination requirements, for obtaining an original license. The person must retake any examinations required to apply for a new license. Any previous licensing examination results will not be accepted. This provision is tied to the new rule under §60.37.

PUBLIC COMMENTS

Comment: The Texas Food & Fuel Association (TFFA) submitted comments on the Chapter 60 rules §60.31 and §60.83, regarding the late renewal fees under Texas Occupations Code, Chapter 51, and the late renewal fees for the Motor Fuel Metering and Quality (FMQ) Program under Texas Occupations Code, Chapter 2310.

TFFA stated: "Section 60.31 incorporates by reference the department's late renewal fee policy which is set forth in §60.83 and authorized by Chapter 51 of the Code. However, Chapter 2310, related to Motor Fuel Metering and Quality establishes a separate late renewal fee policy for motor fuel metering devices." TFFA explained the FMQ statutory late fee provisions for device registrations and noted the difference in late fees between the two statutes. TFFA encouraged the Department "to review §60.83 to incorporate §2310.103(e) motor fuel device registrations in accordance with Chapter 2310, as referenced in TFFA's Chapter 97 Rule Review comments." TFFA further stated: "In the interim, we propose that §60.31(g) be amended to refer to the exception for motor fuel metering device late renewal fees."

Department Response: The Department disagrees with the suggested changes as they relate to the Chapter 60 proposed rules. The Department declines to make the suggested changes as explained below.

First, the Department declines to make changes to §60.83, Late Renewal Fees, since it is not part of this rules package. Section 60.83 implements Texas Occupations Code §51.401, License Expiration and Renewal, which establishes the statutory late renewal fee structure and amounts. The TFFA comment that the Department should review §60.83 and incorporate the late renewal fees for motor fuel device registrations under Texas Occupations Code §2310.103(e) is outside of the scope of this rulemaking. The Department declines to make this change.

Second, the Department declines to make changes to the Chapter 60 proposed rules specific to the FMQ program while the rule review of Chapter 97 is still pending. As noted in its comment letter on the Chapter 60 proposed rules, TFFA submitted a separate comment letter in response to the four-year rule review of the FMQ rules under 16 TAC Chapter 97. The four-year rule review of Chapter 97 is a separate rulemaking action. The public comment period on the rule review opened May 24, 2024, and closed June 24, 2024. In its rule review comment letter dated June 24, 2024, TFFA suggested making changes to FMQ rule §97.74, Fee Policy, and adding a new rule §97.75, to address the late renewal fees for FMQ licenses and motor fuel device registrations. The rule review of Chapter 97 is still pending.

The Department declines to amend §60.31(g) in the interim to include an exception for motor fuel metering device late renewal fees. Any suggested rule changes regarding the late renewal fees specific to the FMQ program as authorized under the FMQ statute, Texas Occupations Code §2310.103(e), should be addressed as part of the FMQ program's rulemaking activities. The appropriate Department staff, the FMQ advisory board, and the FMQ interested parties should be part of the discussions regarding the late renewal fees that are specific to the FMQ program. The Department declines to make changes to the Chapter 60 proposed rules that could interfere with the FMQ rule review that is pending and any possible future FMQ rulemakings.

Third, the Chapter 60 rules are rules of general applicability that implement Texas Occupations Code, Chapter 51, and other state laws applicable to state agencies. As stated in §60.1, the Chapter 60 rules apply to all TDLR programs "except in the event of a conflict with specific statutes and rules governing a specific program." Rules that implement specific program statutes are addressed at the program-level. The Department declines to make changes to the Chapter 60 proposed rules that could interfere with the FMQ rule review that is pending and any possible future FMQ rulemakings.

COMMISSION ACTION

At its meeting on October 23, 2024, the Commission adopted the proposed rules as published in the TexasRegister.

SUBCHAPTER B. POWERS AND RESPONSIBILITIES

16 TAC §60.23

STATUTORY AUTHORITY

In addition, the adopted rules are adopted under the authority of other state laws that apply to state agencies. These laws include Texas Occupations Code, Chapters 53, 54, 55, and 108 (Subchapter B); and Texas Government Code, Chapters 411 (Subchapter F), 2001, and 2005.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code §51.308, §29.902, and Chapter 1001 (Driver Education and Safety); 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); Transportation Code, Chapters 521 (Driver Education and Safety); 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety); and Utilities Code, Chapter 42 (Electric Vehicle Charging Stations).

In addition, the statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapters 53, 54, 55, and 108 (Subchapter B); and Texas Government Code, Chapters 411 (Subchapter F), 2001, and 2005. No other statutes, articles, or codes are affected by the adopted rules.

The legislation that enacted the statutory authority under which the adopted rules under Subchapter B, §60.23 are adopted is House Bill (HB) 1560, 87th Legislature, Regular Session (2021).

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 November 7, 2024.

TRD-202405367

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER C. LICENSE APPLICATIONS AND RENEWALS

16 TAC §60.30, §60.31

STATUTORY AUTHORITY

In addition, the adopted repeals are repealed under the authority of other state laws that apply to state agencies. These laws include Texas Occupations Code, Chapters 53, 54, 55, and 108 (Subchapter B); and Texas Government Code, Chapters 411 (Subchapter F), 2001, and 2005.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Education Code §51.308, §29.902, and Chapter 1001 (Driver Education and Safety); 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); Transportation Code, Chapters 521 (Driver Education and Safety); 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety); and Utilities Code, Chapter 42 (Electric Vehicle Charging Stations).

In addition, the statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapters 53, 54, 55, and 108 (Subchapter B); and Texas Government Code, Chapters 411 (Subchapter F), 2001, and 2005. No other statutes, articles, or codes are affected by the adopted repeals.

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 November 7, 2024.

TRD-202405373

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

16 TAC §§60.30, 60.31, 60.33, 60.34, 60.37

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405371

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER E. EXAMINATIONS

16 TAC §§60.50 - 60.54

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405375

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

16 TAC §§60.50 - 60.56

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405372

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

The Texas Commission of Licensing and Regulation (Commission) adopts a new rule at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter C, §60.32, and amendments to an existing rule at Subchapter D, §60.40, regarding the Procedural Rules of the Commission and the Department, without changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5236). These rules will not be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 60, Procedural Rules of the Commission and the Department, implement Texas Occupations Code, Chapter 51, Texas Department of Licensing and Regulation, and other laws applicable to state agencies.

The adopted rules enable the Department to require certain individuals to furnish e-mail addresses for purposes of receiving correspondence. The adopted rules additionally permit certain incarcerated individuals to apply for licensure prior to release. The adopted rules are necessary to implement §§3 and 5 of House Bill (HB) 3743, 88th Legislature, Regular Session (2023). HB 3743 took effect on September 1, 2023.

Section 3 of HB 3743 amended Occupations Code §51.207(c) to permit the Commission to adopt a rule to require an applicant, license holder, or other person who regularly receives correspondence from the Department to provide an e-mail address for purposes of receiving correspondence. The section further provides that any e-mail address furnished under this provision is confidential for purposes of Government Code, Chapter 552 (the Public Information Act).

The adopted rules implement HB 3743 §3 by authorizing the Department to require e-mail addresses from applicants, license holders, and others who regularly receive correspondence from the Department, and to deem an application incomplete if an applicant fails to provide an e-mail address when directed to do so. The intent of this rule is to allow the Department the flexibility to use instructions on Department forms to make providing an e-mail address mandatory when, in the Department's discretion, requiring an e-mail address would be administratively expedient, while also allowing the Department the flexibility to process an application without an e-mail address on a case-by-case basis.

HB 3743 §5 enacted Occupations Code §51.4014, which authorizes the Department to accept a license application from an inmate imprisoned in the Texas Department of Criminal Justice (TDCJ), but prohibits the Department from issuing the license until the applicant has been released. The Department interprets these provisions as permitting, but not requiring, the Department to accept inmate applications. The adopted rules implement these provisions by amending the existing rule at 16 TAC, Chapter 60, Subchapter, C, at §60.40, License Eligibility for Persons with Criminal Convictions. The existing rule prohibits a person incarcerated because of a felony conviction from obtaining or renewing a license and requires a person whose license is revoked by operation of law under Occupations Code §53.021(b) to wait until release from imprisonment before applying for a license. Because under Occupations Code §53.021(b), automatic license revocation occurs upon imprisonment due to a felony conviction, the existing rule effectively bars formerly licensed TDCJ inmates from applying for a license.

The adopted rules carve out two new circumstances under which the Department will accept inmate applications: when the inmate previously held a license of the same type for which the inmate is applying, and when the inmate has completed a relevant course of study in the Windham School District, or other program acceptable to the Department, to prepare the person for reentry into the workforce in the occupation. The adopted rules further restrict the acceptance of these applications to those inmates who are scheduled for release within the next 90 days. The adopted rules additionally keep in place a provision authorizing the issuance of student permits to inmates studying barbering or cosmetology in a Windham School District or TDCJ program. The Department enjoys a longstanding and successful partnership with the Windham School District and TDCJ. The adopted rules strike a balance in furthering a common goal of this partnership by ameliorating barriers convicted individuals face in reentry to the workforce, while avoiding the imposition of an undue burden on the Department by limiting the acceptance of applications to those reasonably likely to be eligible for approval in the near future.

SECTION-BY-SECTION SUMMARY

The adopted rules adopt new §60.32, E-mail Communications and Requirements. Subsection (a) states the circumstances under which the Department may require a person to provide an e-mail address for purposes of receiving correspondence. Subsection (b) sets forth a potential consequence to an applicant for failing to provide an e-mail address when directed to do so, namely, that the application may be deemed incomplete.

The adopted rules amend §60.40. The first sentence of subsection (c) is deleted and replaced with verbiage clarifying that the provisions in (c) apply when the exceptions in new subsection (d) are inapplicable. Subsection (c)(3) is deleted, and the substance moved to the new subsection (d). New subsection (d), containing the exceptions, is added and subdivided into two paragraphs. Subsection (d)(1) contains the substance of former (c)(3), the student permit exception for the barbering and cosmetology program. Subsection (d)(2) sets forth the new exceptions implemented under Occupations Code §51.4014 and contains language permitting the Department to accept applications from TDCJ inmates who are scheduled for release within the next 90 days in two circumstances, which are set forth in subsection (d)(2)(A) and (d)(2)(B), respectively. Subsection (d)(2)(A) refers to previously licensed inmates and subsection (d)(2)(B) refers to inmates who have completed participation in certain career preparation programs.

PUBLIC COMMENTS

The proposed rules were published in the July 19, 2024, issue of the Texas Register (49 TexReg 5236). The public comment period closed on August 19, 2024. The Department received comments from four interested parties on the proposed rules. The public comments are summarized below.

Comment: The commenter objected to incarcerated individuals being issued a barbering or cosmetology license, citing safety concerns, including access to sharp tools and the fact that some incarcerated individuals suffer from violent or unethical tendencies or psychiatric disorders.

Department Response: The Department notes that although the proposed rules affect the timing of license issuance by permitting an application to be processed prior to the applicant being released from incarceration and the applicant to be licensed immediately upon release, the proposed rules do not otherwise loosen the requirements for an individual to become licensed. Under the existing rules, incarcerated individuals are permitted to receive training in regulated occupations and may apply for licensure upon being released, with the exception that student permits in the barbering and cosmetology program are already issued to some incarcerated individuals who are receiving occupational training. Under existing law, the criminal history of applicants is considered on a case-by-case basis in accordance with statutory standards. Therefore, the Department declines to make changes in response to this comment.

Comment: The commenter stated general opposition to all of the proposed rules but provided no supporting rationale.

Department Response: Because no rationale was provided, the Department declines to make changes in response to this comment.

Comment: The commenter expressed support for the proposed changes to Rule §60.40, stating that allowing incarcerated individuals to apply for a cosmetology license is a positive decision and will bring hope to individuals otherwise facing a bleak future.

Department Response: The Department appreciates the comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of the comment.

Comment: The commenter expressed opposition to the changes to Rule §60.40, expressing that the commenter has worked as a massage therapist for 25 years. The commenter alluded to a former statute prohibiting those with prostitution convictions from becoming licensed as massage therapists and questioned why, in light of the strict standards for the profession, should a convicted individual be permitted to be licensed.

Department Response: The Department notes that although the proposed rules affect the timing of license issuance, the proposed rules do not otherwise loosen the requirements for an individual to become licensed. The Department analyzes an applicant's criminal history and determines eligibility on a case-by-case basis in accordance with statutory standards. Lastly, the Department notes that although certain offenses are an automatic bar to a massage license, there have been recent statutory changes to the eligibility standards. The Department declines to make changes to the proposed rules in response to this comment.

COMMISSION ACTION

At its meeting on October 23, 2024, the Commission adopted the proposed rules as published in the Texas Register.

SUBCHAPTER C. LICENSE APPLICATIONS AND RENEWALS

16 TAC §60.32

STATUTORY AUTHORITY

The proposed rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement this chapter 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, Chapter 51, 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 House Bill 3743, 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 November 7, 2024.

TRD-202405365

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: July 19, 2024

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

SUBCHAPTER D. CRIMINAL HISTORY AND LICENSE ELIGIBILITY

16 TAC §60.40

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 3743, 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 November 7, 2024.

TRD-202405366

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: July 19, 2024

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

CHAPTER 65. BOILERS

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 65, Subchapter A, §65.2; Subchapter C, §65.14 and §65.15; Subchapter D, §65.25 and §65.26; Subchapter F, §65.40 and §65.41; Subchapter H, §65.50; Subchapter I, §§65.60 - 65.63; Subchapter J, §65.70 and §65.71; Subchapter K, §65.83 and §65.86; Subchapter M, §65.101; Subchapter N, §65.206 and §65.217; Subchapter O, §65.300; Subchapter P, §65.401; new Subchapter S, Technical Requirements, amendments to §§65.607 - 65.609, 65.611, 65.612, and 65.614; new rules at Subchapter K, §65.87; and Subchapter R, §§65.550 - 65.552, 65.555, 65.556, 65.559, and 65.560; and the repeal of existing rules at Subchapter B, §65.8; Subchapter L, §65.90 and §65.91; Subchapter M, §65.104; and existing Subchapter R, §§65.600 - 65.604, regarding the Boiler program, without changes to the proposed text as published in the May 17, 2024, issue of the Texas Register (49 TexReg 3441). These rules will not be republished.

The Commission also adopts amendments to existing rules at 16 TAC Chapter 65, §§65.12, 65.13, 65.61, 65.200, and 65.555 regarding the Boiler program, with changes to the proposed text as published in the May 17, 2024, issue of the Texas Register (49 TexReg 3441). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 65, implement Texas Health and Safety Code, Chapter 755, Boilers.

The adopted rules make twelve discrete changes to improve standards for and regulation of boilers and those who install, operate, maintain, and inspect them. The amendments originate with staff and the Board of Boiler Rules members and are authorized by the boiler enabling act.

The new and amended rules promote equipment safety and compliance. They include more detailed requirements for installing boilers and reporting their installation; installing blow-down equipment where needed and required; replacing and plugging boiler tubes; provide an option for remote monitoring of carbon monoxide levels in boiler rooms; and add a requirement for a visual display to carbon monoxide detectors if absent.

Other new and amended rules to enhance safety address National Fire Protection Association compliance; safety of the physical conditions of the premises for inspectors; and detailed requirements for preservation of the scene of boiler accidents to aid investigation and determine causes of malfunction.

To provide for more efficient and effective regulation, new rule requirements include clarifying the responsibilities of Authorized Inspection Agencies (AIA) to timely conduct required inspections and imposing the new late inspection fee on them as appropriate; prohibiting inspectors from installing boilers to prevent conflicts of interest; and removing minor or infrequently assessed fees. These amendments replace the late renewal fee with a fairer late inspection fee and a presumption of operation after expiration of the certificate of operation. The fee change for late inspections accompanies the removal of the referral fee for a department inspection when the owner fails to obtain an inspection. The late inspection fee is expected to increase compliance with the required frequency of boiler inspections, resulting in improved safety and more proportionate consequences for noncompliance.

Finally, the department has made edits throughout the rules to correct and update citations, cross-references, grammar, capitalization, and usage to improve accuracy, readability, and consistency in the rule text. These are hence referred to collectively as "nonsubstantive edits" for brevity.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §65.2, Definitions, to add definitions for blowdown separators, blowdown tanks, and blowdown water; clarify the definitions of "install" and "reinstalled boiler," make numerous nonsubstantive edits; and renumber the section.

The adopted rules repeal §65.8, Registration--Authorized Inspection Agency Without NB-360 Accreditation, because the National Board has retired this accreditation.

The adopted rules amend §65.12, Boiler Registration and Certificate of Operation Required, to add that the issuance of a certificate of operation triggers the obligation to remain in compliance, to timely conduct the required inspections, and that continued operation is presumed during the term of the certificate. The section is edited for clarity. The word "person" has been replaced with "owner or operator" for a more precise statement of the applicability of the rule.

The adopted rules amend §65.13, Boiler Installation, to require submission of the installation report upon completion of installation instead of within 30 days after installation, and to prohibit operation or test-firing before the first inspection unless the installation was conducted in compliance with the rules, the installation report has been submitted, and a temporary operating permit has been approved. In §65.13(a)(2) three undefined terms were removed and a citation to the definition of a fourth was added to improve clarity.

The adopted rules amend §65.14, Inspector Commissions, to make a nonsubstantive edit.

The adopted rules amend §65.15, Boiler Certificate of Operation, to add the condition that unpaid invoices associated with a boiler must be paid before the boiler is eligible for a certificate of operation. The section is renumbered, and the section heading is updated.

The adopted rules amend §65.25, Authorized Inspector--Eligibility Requirements and §65.26, Commission-Renewal and Reinstatement, to make non-substantive edits.

The adopted rules amend §65.40, Authorized Inspector--Commission Card, to simplify and clarify the requirements for obtaining and using commission cards.

The adopted rules amend §65.41, Reissuance of Commission Card after Reemployment, to simplify and clarify the requirements for reissuance of a commission card when changing employers. The section heading is amended.

The adopted rules amend §65.50, Inspectors--Prohibited Conflicts of Interest, to prohibit inspectors and inspection agencies from installing boilers or inspecting boilers installed by other inspectors or inspection agencies due to the inherent conflict of interest.

The adopted rules amend §65.60, External Inspection, to make a non-substantive edit.

The adopted rules amend §65.61, Inspection of All Boilers Required, to subject owners, operators, and Authorized Inspection Agencies that are responsible for a boiler to the late inspection fee for failure to conduct the certificate inspection before the certificate of operation expires. Operation beyond expiration of the certificate is presumed. AIAs are required to timely conduct inspections for boilers for which they are responsible. AIAs that are not responsible for a boiler at the time the certificate expires, and those agencies denied access to inspect, are not made responsible for the late inspection fee for failure to conduct the inspection timely. The late inspection fee is made applicable to boilers for which the certificate of operation expires one year or more after the adoption of these rule amendments. For clarity, staff has edited the text to state the date certain instead of the time period.

The adopted rules amend §65.62, Notice of Inspection to Owners or Operators of Boilers, to clarify that owners or operators must make boilers available for inspection when notified by the inspector.

The adopted rules amend §65.63, Inspection of Portable Boilers, to make nonsubstantive edits.

The adopted rules amend §65.70, Texas Boiler Numbers--Required, to clarify requirements related to the identification number tag attached to each boiler during its first inspection.

The adopted rules amend §65.71, Texas Boiler Number--Placement on Boiler, to make nonsubstantive edits.

The adopted rules amend §65.83, Boiler Accidents, to clarify and add details about the actions to take and the items to preserve and protect from disturbance following a serious accident until an inspection and investigation are conducted.

The adopted rules amend §65.86, Authorized Inspection Agencies Reporting Requirements, to remove mention of the obsolete NB-360 authorization.

The adopted rules add new §65.87, Boiler Installation Reporting Requirements, to add the updated requirement for the owner, operator, or installer to submit the boiler installation report upon completion of the installation of a boiler.

The adopted rules repeal §65.90, Commissions--Authorized Inspector, because the requirements in this section are obsolete or appear in §§65.14, 65.26, 65.40, and 65.41.

The adopted rules repeal §65.91, Overdue Boiler Inspection--Authorized Inspection Agency Referral, because the Department will no longer refer boilers for which the inspection is past due to another AIA but will instead impose the late inspection fee.

The adopted rules amend §65.101, Board of Boiler Rules--Membership; Presiding Officer, to update the requirements for presiding officer participation consistent with the Act, and to amend the section heading.

The adopted rules repeal §65.104 because the Boiler Board rules in §65.101 are being amended to include the relevant requirement.

The adopted rules amend §65.200, New Boiler Installations, to clarify and update requirements consistent with other updates in the chapter regarding installation, inspection, and operation, and to add the presumption of continued operation past expiration of the certificate of operation unless the owner, operator, or AIA demonstrates otherwise. The word "person" has been replaced with "owner or operator" for a more precise statement of the applicability of the rule.

The adopted rules amend §65.206, Boiler Room, to add the requirement to install a display on any carbon monoxide detector that is not so equipped. The amended rule also provides for the choice to use a remote monitoring system provided certain alarm and interlock conditions are met. The section is renumbered.

The adopted rules amend §65.217, Variance, to make nonsubstantive edits.

The adopted rules amend §65.300, Fees, to clarify that the owner or operator is responsible for the fee to file boiler installation reports. Additional amendments remove the late renewal fee, the fee for reissuance of a commission card, the fee for overdue boiler inspections, and make nonsubstantive edits. The rule specifies that any due or past due amounts must be paid with the fee for a certificate of operation. The late inspection fee is imposed and is limited to $25 per day for the first 30 days following expiration of the certificate of operation. The daily fee increases at the 31st day and the 61st day after expiration of the certificate of operation until the inspection is conducted.

The adopted rules amend §65.401, Sanctions, to impose the late inspection fee for boilers not inspected before the expiration of the certificate of operation, and to make nonsubstantive edits.

The adopted rules amend the heading of Subchapter R, Technical Requirements, to Subchapter R, Basic Technical Requirements, which now encompasses all sections from new §65.550 and ending with new §65.560. Sections 65.550, 65.551, 65.552, 65.556, and 65.559 were formerly §§65.600, 65.601, 65.602, 65.603, and 65.604, respectively, which are adopted for repeal and inclusion with these new section numbers as described in the following. New sections with all new requirements are §65.555 and §65.560.

The adopted rules add new §65.550, Conditions Not Covered by Rules, which is the repealed former §65.600, Conditions Not Covered by Rules, with no substantive changes made.

The adopted rules add new §65.551, General Safety, which is the repealed former §65.601, General Safety, but with new additional requirements for the owner or operator to maintain a safe work environment for access and inspection of a boiler, and which clarifies and updates the procedures for an inspector and the department to follow if the conditions or the boiler itself are unsafe.

The adopted rules add new §65.552, Chimneys and Vents, which is the repealed former §65.602, Chimneys and Vents, with no substantive changes made.

The adopted rules create new §65.555, Boiler Blowdown, which adds requirements to install blowdown separators or blowdown tanks to ensure that the temperature and pressure of the water does not exceed safe levels when discharged from a power boiler into a sanitary sewer. Requirements for design, standards, construction, and registration with the National Board of Boiler and Pressure Vessel Inspectors are included, as is a requirement for compliance with the new requirements no later than six months after the adoption of the rule. For clarity, staff has edited the text to state the date certain instead of the time period.

The adopted rules add new §65.556, Boiler Room Ventilation, which is the repealed former §65.603, Boiler Room Ventilation, with no substantive changes made.

The adopted rules add new §65.559, Location of Discharge Outlets, which is the repealed §65.604, Location of Discharge outlets, with no substantive changes made.

The adopted rules create new §65.560, Boiler and Combustion Systems Hazards Code, to add requirements for compliance with National Fire Protection Association Code Book 85 for certain specified types of boilers, pulverized fuel systems, and steam generators.

The adopted rules repeal existing §§65.600, 65.601, 65.602, 65.603, and 65.604 and repropose them with additional requirements and nonsubstantive edits as described above, in existing Subchapter R, as new §§65.550, 65.551, 65.552, 65.556, and 65.559.

The adopted rules add the new Subchapter S., Technical Requirements, which encompasses all existing sections from §65.605 to §65.615, the end of the boiler rules. These sections were formerly in Subchapter R. They are not renumbered and adopted changes to some sections are described in the following.

The adopted rules amend §65.607, Power Boilers, Excluding Unfired Steam Boilers and Process Steam Generators; §65.608, Unfired Steam Boilers; §65.609, Process Steam Generators; and §65.611, Heating Boilers, to correct cross-references and to make nonsubstantive edits.

The adopted rules amend §65.612, Repair and Alterations, to add requirements for replacing and plugging boiler tubes on certain boilers and to add qualifications for persons performing the activities, to ensure safety. Renumbering and nonsubstantive edits are also made in the section.

The adopted rules amend §65.614, Authority to Set and Seal Safety Appliances, to make nonsubstantive edits.

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 May 17, 2024, issue of the Texas Register (49 TexReg 3441). The public comment period closed on June 17, 2024. The Department received written comments on the proposed rules from two interested parties, Luminant Power Generation Company and NRG Energy. In addition, five individuals appeared at the Board of Boiler Rules' meeting on August 21, 2024, and provided public comment on behalf of the Texas Chemistry Council, Vistra Corp./Luminant Generating Co., Entergy Services Inc., Calpine Corp., and Constellation Energy Corp. The public comments are summarized below.

Comment: One commenter requests clarification of when an installation report following installation or reinstallation must be filed so that operators will know when an inspection must be scheduled, and the equipment may go online. The commenter states that the requirement to file the installation report before operation provides sufficient motivation to file the report timely, so there is no need for a filing deadline, or, alternatively, the existing 30-day deadline could be retained. The comments claim that operators and installers need time after installation concludes to complete the report. The commenter requests modifying both proposed §65.13(a) and new §65.87, regarding installation reporting requirements, to make consistent changes.

Department Response: The Department agrees that timely if not immediate notification of installation to the Department will occur if the operator desires to commence test firing and operation upon installation but before the initial inspection. In such a situation the submission of the installation report and the application for a Temporary Operating Permit can be made contemporaneously or in rapid succession. The Department does not agree that there is no benefit to requiring the installation report to be filed at the time that installation or reinstallation is completed. This provides the Department, the Authorized Inspection Agency, and all parties a trigger to completing the required initial inspection, which is done after the Temporary Operating Permit expires or after the boiler has been installed but not yet operated.

Each boiler must be installed, registered, and inspected. Currently, both an installation report and an inspection report must be submitted to the Department within 30 days after the completion of each activity. No deadline exists for completing the installation of a boiler. However, each boiler must have either a Temporary Operating Permit or a Certificate of Operation before it may be operated. A boiler that has been installed but for which no installation report has been submitted is unknown to the Department and has not been inspected. It presents a safety risk, both for unlawful operation or for inadvertent or accidental operation. The current 30-day notification period is unnecessarily long because the installation report can reasonably be completed and submitted upon completion of installation. Prompt submission will also reduce the potential delay of the initial inspection from 60 days to a maximum of either: (1) 30 days from the submission of the installation report or (2) the expiration of the Temporary Operating Permit. The Department has made no changes to the proposed rule in response to this comment.

Comment: All of the seven commenters recommended that the proposed new §65.13(a)(2) be revised either to remove undefined new terms; to possibly form a work group to create a clearer requirement; or to define "reconnection," "disassembly," and "reassembly" used in the proposed subsection: "The owner or operator of a boiler in this state must submit a boiler installation report to the department . . . not later than the time of completion of: (1) a boiler installation; or (2) a boiler reinstallation following relocation, disconnection and reconnection, or disassembly and reassembly."

The commenters state that from a practical standpoint, any disassembly, as that term is generally understood, will be accompanied by a disconnection; however, the commenters also stated that disassembly does not always refer to the entire boiler but to portions of it, thus creating ambiguity as to when an installation report is required. They indicate that maintenance and repair can result in disassembly and reassembly that is not accompanied by disconnection and reconnection of the boiler, as defined in §65.2(26). The commenters state that the ambiguity could result in confusion as to when to file an installation report, and delay in returning a boiler to service due to obtaining an unnecessary certificate inspection.

Department Response: The Department disagrees that the conditions upon which the installation or reinstallation of a boiler (qualitatively, exactly the same process) requires an installation report to be submitted are unclear. The operative word in §65.13(a)(2) is "reinstallation." That term is followed by the activities that typically precede the activity of reinstallation. However; the Department agrees with the board's recommendation to simplify the rule language, but notes that the applicability of the requirement to file an installation report and obtain an inspection following installation or reinstallation of a boiler remains unchanged. Reinstallation is invariably preceded by disconnection, then reconnection at the location where the boiler is reinstalled. The Department has amended the requirement in §65.13(a)(2) to say "a boiler reinstallation following relocation or disconnection (as defined in §65.2(26))."

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Board of Boiler Rules met on August 21, 2024, 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 with changes to §65.12 and §65.13 made in response to public comment and described in the Section-By-Section Summary. The recommended change to §65.12 replaces "person" with "owner or operator" for a more precise statement of the applicability of the rule. The Department made the identical change in §65.200 as well. In new §65.13(a)(2), which makes no substantive change to the rules, three undefined terms were removed and a citation to the definition of a fourth was added to improve clarity. In §§65.61 and 65.555 nonsubstantive edits were made to reword effective dates from stating a time period to stating the date certain.

At its meeting on October 23, 2024, the Commission adopted the proposed rules with changes as recommended by the Advisory Board.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §65.2

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Health and Safety Code, Chapter 755, Boilers, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Health and Safety Code, Chapter 755. 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 November 7, 2024.

TRD-202405376

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER B. REGISTRATION--AUTHORIZED INSPECTION AGENCY

16 TAC §65.8

STATUTORY AUTHORITY

The adopted repeals are repealed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted repeals are also repealed under Texas Health and Safety Code, Chapter 755, Boilers, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adopted repeals are those set forth in Texas Occupations Code, Chapter 51, and Texas Health and Safety Code, Chapter 755. No other statutes, articles, or codes are affected by the adopted repeals.

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 November 7, 2024.

TRD-202405398

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

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

16 TAC §§65.12 - 65.15

STATUTORY AUTHORITY

§65.12.Boiler Registration and Certificate of Operation Required.

(a) Except as provided by this chapter, the owner or operator of each boiler operated in this state must:

(1) register the boiler with the department;

(2) have qualified each boiler for a current certificate of operation; and

(3) post the current certificate of operation in a conspicuous place on or near the boiler for which it is issued.

(b) Upon issuance of a certificate of operation for a boiler:

(1) the obligation to comply with the Act and this chapter, including the requirement for periodic inspections, is required to continue operation; and

(2) the continued operation of the boiler is presumed unless the owner or operator establishes to the satisfaction of the department, based on the owner or operators' records or other evidence reasonably acceptable to the department, that the boiler was not in operation after the expiration of a certificate of operation for that boiler.

§65.13.Boiler Installation.

(a) The owner or operator of a boiler in this state must submit a boiler installation report to the department, in the manner prescribed by the department, not later than the time of completion of:

(1) a boiler installation; or

(2) a boiler reinstallation following relocation or disconnection (as defined in §65.2(26)).

(b) A boiler may not be test-fired or operated before the required first inspection unless the boiler installation:

(1) is conducted in accordance with the applicable requirements of this chapter, including but not limited to this section and §§65.50, 65.87, 65.200, 65.201, 65.204, and 65.209;

(2) the owner, operator, or boiler installer has submitted a boiler installation report to the department in the manner prescribed by the department; and

(3) a Temporary Boiler Operating Permit has been approved in accordance with subsection (c).

(1) The owner or operator may request a Temporary Boiler Operating Permit in the manner prescribed by the department.

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

(3) The department will not approve a Temporary Boiler Operating Permit if a boiler installation report for the boiler has not been submitted to the department in the manner prescribed by the department.

(4) Upon approval of the Temporary Boiler Operating Permit from the department, the boiler may be operated before the required initial inspection for up to thirty (30) days.

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 November 7, 2024.

TRD-202405377

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER D. AUTHORIZED INSPECTOR

16 TAC §65.25, §65.26

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405378

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER F. COMMISSION CARDS

16 TAC §65.40, §65.41

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 November 7, 2024.

TRD-202405379

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER H. INSPECTOR STANDARDS OF CONDUCT

16 TAC §65.50

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Health and Safety Code, Chapter 755, Boilers, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The 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 November 7, 2024.

TRD-202405380

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER I. INSPECTION OF BOILERS

16 TAC §§65.60 - 65.63

STATUTORY AUTHORITY

§65.61.Inspection of All Boilers Required.

(a) All boilers not exempted by Texas Health and Safety Code, §755.022 shall be inspected in accordance with Texas Health and Safety Code, §755.025, §755.026, or any applicable rules under this chapter.

(b) All boilers must receive a certificate inspection before the expiration date of the current certificate of operation.

(c) Boilers must be inspected by the Authorized Inspection Agency that issued an insurance policy to cover a boiler located in this state, or by an authorized representative. All other boilers must be inspected by the department.

(1) The Authorized Inspection Agency must conduct a certificate inspection for each boiler for which it is responsible before the expiration of the boiler's current certificate of operation.

(2) The continued operation of the boiler beyond the expiration of the certificate of operation is presumed in accordance with §65.200.

(3) The Authorized Inspection Agency listed in the department's reporting system that fails to timely inspect a boiler for which it is responsible is subject to the late inspection fee in §65.300 if the current certificate of operation expires while the Authorized Inspection Agency has inspection responsibility.

(4) The owner or operator of a boiler that does not receive a certificate inspection before the expiration of the current certificate of operation is subject to the late inspection fee in §65.300.

(5) An Authorized Inspection Agency that is denied access to a boiler for inspection purposes is not responsible for a late inspection fee under paragraph (c)(3). A denied-access violation of §65.62(a) must be documented on the inspection report.

(d) Upon request, an Authorized Inspection Agency must provide the department documentation of the effective dates of its inspection responsibility for a boiler.

(e) Subsections (c)(3) and (c)(4) apply to boilers for which the certificate of operation expires on or after December 1, 2025.

(f) Except in the case of an accident or other emergency, no inspection will be made by the chief inspector or any deputy inspector on a Saturday, Sunday, or legal holiday, unless otherwise directed by the department.

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 November 7, 2024.

TRD-202405381

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER J. TEXAS BOILER NUMBERS

16 TAC §65.70, §65.71

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405382

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER K. REPORTING REQUIREMENTS

16 TAC §§65.83, 65.86, 65.87

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405383

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER L. RESPONSIBILITIES OF THE DEPARTMENT

16 TAC §65.90, §65.91

STATUTORY AUTHORITY

The adopted repeals are repealed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted repeals are also repealed under Texas Health and Safety Code, Chapter 755, Boilers, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The 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 November 7, 2024.

TRD-202405399

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER M. BOARD OF BOILER RULES

16 TAC §65.101

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405384

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

16 TAC §65.104

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405400

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER N. RESPONSIBILITIES OF THE OWNER AND OPERATOR

16 TAC §§65.200, 65.206, 65.217

STATUTORY AUTHORITY

§65.200.New Boiler Installations.

(a) No boiler, except reinstalled boilers and those exempted by Texas Health and Safety Code, §755.022, may be operated in this state unless:

(1) it has been constructed, installed, inspected, and stamped in conformity with the applicable section of the ASME Code;

(2) it is registered with the National Board of Boiler and Pressure Vessel Inspectors except cast iron or cast-aluminum sectional boilers; and

(3) it is installed, approved, registered, and inspected in accordance with the requirements of this chapter.

(b) A boiler having the standard stamping of another state that has adopted a standard of construction equivalent to the standard of the State of Texas, or a special-designed boiler, may be approved by the department. Any person desiring to install such a boiler must file a written request for approval to install and for a special inspection.

(c) New boilers and reinstalled boilers must be installed in accordance with the requirements of the latest revision of the applicable section of the manufacturer's recommendations, the ASME Code, the Act, and this chapter. These boilers must be inspected before test-firing or operation in accordance with §65.13 and all applicable rules.

(d) Upon issuance of a certificate of operation for a boiler:

(1) the obligation to comply with the Act and this chapter, including the requirement for periodic inspections, is required to continue operation; and

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 November 7, 2024.

TRD-202405386

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER O. FEES

16 TAC §65.300

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405387

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER P. ADMINISTRATIVE PENALTIES AND SANCTIONS

16 TAC §65.401

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405389

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER R. BASIC TECHNICAL REQUIREMENTS

16 TAC §§65.550 - 65.552, 65.555, 65.556, 65.559, 65.560

STATUTORY AUTHORITY

§65.555.Boiler Blowdown.

(a) Blowdown water from power boilers must pass through an approved blowdown separator or blowdown tank when entering a sanitary sewer.

(b) The temperature of the blowdown water leaving the blowdown separator or blowdown tank must not exceed 140 degrees Fahrenheit.

(d) All blowdown piping and fittings must meet requirements set forth in ASME Piping Code B31.1, Power Piping.

(e) A blowdown separator must be fitted with threaded or flanged openings to facilitate inspection. A blowdown tank must be fitted with a manway for cleaning and inspection.

(f) The vent and drain of the blowdown separator or blowdown tank must be piped to a safe point of discharge.

(g) A blowdown separator or blowdown tank, when required by this chapter, must:

(1) be constructed in accordance with ASME Boiler and Pressure Vessel Code, Section VIII Division 1;

(2) have a minimum design pressure equal to the recommended pressure of the boiler manufacturer for the boiler to which the tank or separator is connected; and

(3) be registered with the National Board of Boiler and Pressure Vessel Inspectors.

(h) Installation or modification of equipment to achieve compliance with this section is required to be completed no later than June 1, 2025.

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 November 7, 2024.

TRD-202405397

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER R. TECHNICAL REQUIREMENTS

16 TAC §§65.600 - 65.604

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405401

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

SUBCHAPTER S. TECHNICAL REQUIREMENTS

16 TAC §§65.607 - 65.609, 65.611, 65.612, 65.614

STATUTORY AUTHORITY

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 November 7, 2024.

TRD-202405395

Doug Jennings

General Counsel

Texas Deparment of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: May 17, 2024

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

CHAPTER 84. DRIVER EDUCATION AND SAFETY

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 84, Subchapter A, §84.2 and §84.3; Subchapter C, §§84.40, 84.43, 84.44, 84.46; Subchapter D, §84.50; Subchapter E, §84.60 and §84.63; Subchapter G, §84.80; and Subchapter N, §84.601; new rule at Subchapter D, §84.52; Subchapter M, §§84.500 - 84.505; and the repeal of existing rules at Subchapter D, §84.51 and §84.52; and Subchapter M, §§84.500 - 84.502 and §84.504 regarding the Driver Education and Traffic Safety (DES) program, without changes to the proposed text as published in the August 30, 2024, issue of the Texas Register (49 TexReg 6669). These rules will not be republished.

The Commission also adopts an amendment to existing rules at 16 TAC Chapter 84, Subchapter N, §84.600; the Program of Organized Instruction in Driver Education and Traffic Safety, also known as the "POI-DE Program Guide" and new rules at 16 TAC Chapter 84, Subchapter D, §84.51, regarding the Driver Education and Traffic Safety (DES) program, with changes to the proposed text as published in the August 30, 2024, issue of the Texas Register (49 TexReg 6669). These rules will be republished. The POI-DE will be republished in the "In-Addition" section of the Texas Register.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules under 16 TAC, Chapter 84, implement House Bill (HB) 1560, Article 5, Regular Session (2021) and Texas Education Code, Chapter 1001, Driver and Traffic Safety Education.

The adopted rules are necessary to complete the Department's administrative rulemaking effort for the implementation of HB 1560, Article 5 for the DES program, which addresses rule amendments relating to: (1) driver training curriculum, driver education certificate prerequisites, and enforcement; and (2) implementing the recommendations of the DES Curriculum Workgroup (Workgroup).

House Bill 1560, Article 5, Driver Education (Phase 2)

House Bill 1560, Article 5, Regular Session (2021) represented a significant reorganization and modification in the Driver Education and Traffic Safety program, which the Department is implementing in two phases. The first phase of the DES bill implementation project included: (1) repealing specific driver training license types, program courses, endorsements, and administrative functions to promote simplicity and transparency for stakeholders; and (2) amending program fees and requirements related to the revised license types. The Department accomplished these objectives in its first rulemaking to implement the bill, through the adoption of rules that became effective June 1, 2023.

This second phase of rulemaking will address additional amendments that will impact issues such as: (1) driver education course curriculum, classroom and behind-the-wheel instruction hours, and course creation; (2) provider administration of driver education certificates after course auditing; and (3) authorizing the Commission to change minimum hours for driver education course instruction.

SECTION-BY-SECTION SUMMARY

Subchapter A, General Provisions.

The adopted rules amend §84.2, Definitions, by: (1) adding new definitions for "behind-the-wheel instruction", "in-car instruction", "registered agent", and "supervised practice"; and (2) renumbering the provisions as needed.

The adopted rules amend §84.3, Materials Adopted by Reference, by updating the DES Program Guides adopted by reference to their new 2024 editions, which include updates to reflect current laws, rules, and Department policies and to improve organization and clarity. The adopted rules include a change recommended by the Driver Education and Traffic Safety Advisory Committee at its meeting on October 3, 2024, to amend the minimum duration of Module One of the driver education classroom instruction course from four to six hours in the Program of Organized Instruction in Driver Education and Traffic Safety (POI-DE). Completion of this instructional module is the prerequisite for a student to receive a Learner License and required by Texas Transportation Code §521.222. The duration of Module One is governed by 37 TAC §15.27(b) and currently set at six hours. The Advisory Committee made no change to the published versions of the two remaining Program Guides. However, due to the change to the POI-DE, that specific Program Guide will be published separately in the Texas Register in the "In-Addition" section of the publication with the adopted rules.

Subchapter C, Driver Education Schools and Instructors.

The adopted rules amend §84.40, Driver Education Provider Licensure Requirements, by: (1) repealing the requirement that a school provide a current list of inventoried motor vehicles used for instruction as a part of the license renewal application; and (2) correcting rule language.

The adopted rules amend §84.43, Driver Education Certificates, by: (1) adding a provision that a school's failure to update curriculum following an audit recommendation could result in the Department's suspension of the school's right to receive driver education certificates; (2) expanding suspension or revocation penalties to a school's credentials in the event of any misrepresentation made by a school or instructor in issuing a driver education certificate; and (3) clarifying rule language and grammar.

The adopted rules amend §84.44, Driver Education Instructor License, by correcting rule language.

The adopted rules amend §84.46, Attendance and Makeup, by correcting rule language.

Subchapter D, Parent-Taught Driver Education.

The adopted rules amend §84.50, Parent-Taught Driver Education Program Requirements, by (1) adding language clarifying the minimum amount of behind-the-wheel instruction and supervised practice a student must complete after receiving a learner license upon completion of Module One; and (2) repealing language requiring that behind-the-wheel parent taught driver education be conducted solely on Texas highways.

The adopted rules repeal existing §84.51, Submission of Parent-Taught Course for Department Approval.

The adopted rules add new §84.51, Submission of Parent-Taught Course for Department Approval. The new rule replaces existing §84.51 to repeal the department's practice of pre-approval of course material at initial application, and course review upon renewal, consistent with HB 1560 directives. The adopted rules in this section include the Driver Education and Traffic Safety Advisory Committee amendments recommended at its October 3, 2024, meeting, in response to public comments received, to subsections (a)-(c) by: (1) correcting rule language addressing classroom instruction elements for parent-taught driver education courses; and (2) reorganizing subsections as needed.

The adopted rules repeal existing §84.52, Cancellation of Department Approval.

The adopted rules add new §84.52, Revocation of Department Approval (formerly entitled "Cancellation of Department Approval"). The new rule replaces existing §84.52 to: (1) expand the Department's authority to revoke a parent-taught driver education (PTDE) provider license in the event the course material is inconsistent with applicable state law; (2) provide a 90-day window for a PTDE provider to correct any deficiencies in the course material noticed by the Department before possible revocation; (3) establish a 30-day waiting period for a PTDE provider to reapply for a new parent-taught driver education provider license after revocation; and (4) clarified rule language.

Subchapter E, Providers.

The adopted rules amend §84.60, Driving Safety Provider License Requirements, by correcting rule language.

The adopted rules amend §84.63, Uniform Certificate of Course Completion for Driving Safety Course, by correcting rule language.

Subchapter G, General Business Practices.

The adopted rules amend §84.80, Names and Advertising, by correcting rule language.

Subchapter M, Curriculum and Alternative Methods of Instruction.

The adopted rules repeal existing §84.500, Courses of Instruction for Driver Education Schools.

The adopted rules add new §84.500, Courses of Instruction for Driver Education Providers. The new rule replaces existing §84.500 to: (1) update the educational objectives of driver training courses consistent with current state law; (2) reduce the minimum of classroom instruction hours in driver education courses from 32 to 24 hours; (3) govern the administration and teaching of driver education materials to maximize student mastery of educational content; (4) clarify driver education requirements related to behind-the-wheel and in-car instruction; (5) transfer the rule requirements for in-person and online adult six-hour driver education courses to new §§84.502 and 84.503, respectively; (6) restrict students from enrolling in a driver education course after commencement of the fifth hour (instead of the seventh hour) of classroom instruction; (7) allow DE providers more flexibility in the presentation of driver education instruction to students, consistent with the provisions of HB 1560; and (8) reorganize subsections as needed.

The adopted rules repeal existing §84.501, Driver Education Course Alternative Method of Instruction.

The adopted rules add new §84.501, Driver Education Course Alternative Method of Instruction. The new rule replaces existing §84.501 to: (1) clarify minimum Department standards for AMI approval to ensure secure testing and security measures for content and personal validation, and integrity and consistency in presentation of driver education course curriculum with in-person and online instruction; (2) reduce the total duration of student break intervals, and the minimum hours of driver education instructional content presented in an AMI format from 32 hours to 24 hours; (3) increase the minimum amount of minutes allocated to an AMI for multimedia presentations from 640 minutes to 720 minutes; (4) simplify the academic integrity standards and instructional design concepts for an AMI driver education course; (5) add multifactor authentication requirements for personal validation of students for an AMI driver education course; (6) clarify the process by which a DE provider may modify AMI instructional methods and ensure that such changes are consistent with applicable law, rules and DE Program Guides; and (7) reorganize subsections as needed.

The adopted rules repeal existing §84.502, Driving Safety Courses of Instruction.

The adopted rules add new §84.502, In-Person Driver Education Course Exclusively for Adults. The new rule replaces existing §84.502 to: (1) move the Department rules related to the Adult In-Person Six Hour Driver Education Course from §84.500(b)(2) and place them in a separate section for greater ease in location and clarity for the public; and (2) reorganize the subsections as needed.

The adopted rules add new §84.503, Online Driver Education Course Exclusively for Adults, to: (1) move the Department rules related to the Adult Online Six Hour Driver Education Course from §84.500(b)(2)(B) and place them in a separate section for greater ease in location and clarity for the public; (2) add multifactor authentication requirements for personal validation of students for an online adult six-hour driver education course; and (3) reorganize the subsections as needed.

The adopted rules repeal existing §84.504, Driving Safety Course Alternative Delivery Method.

The adopted rules add new §84.504, Driving Safety Courses of Instruction. The new rule replaces existing §84.504 to: (1) relocate the Driving Safety rules from §84.502 to this new rule location; (2) update the educational objectives of driver training courses consistent with current state law; (3) remove authorship requirements for those providers that compose customized driving safety curriculum; (4) simplify rule language; and (5) reorganize the subsections as needed.

The adopted rules add new §84.505, Driving Safety Course Alternative Delivery Method, to: (1) relocate existing §84.504 to this new rule location; (2) add multifactor authentication requirements for personal validation of students for an ADM six-hour driving safety education course; (3) simplify rule language; and (4) reorganize the subsections as needed.

Subchapter N, Program Instruction for Public Schools, Education Service Centers, and Colleges or Universities Course Requirements.

The adopted rules amend §84.600, Program of Organized Instruction, by: (1) reducing the minimum of classroom instruction hours in a driver education course from 32 to 24 hours; (2) restricting students from enrolling in a driver education course after commencement of the fifth hour (instead of the seventh hour) of classroom instruction in a 24-hour program; (3) limiting driver education training (including in-car instruction) to a maximum of six hours each day; and (4) clarifying rule language. The adopted rules in this section include the Driver Education and Traffic Safety Advisory Committee amendments recommended at its October 3, 2024, meeting, and in response to public comments received, to subsections (a) and (c) by: (1) including rule language to provide consistency with previous sections; and (2) correcting the number of classroom instruction hours from four to six in Module One of minor and adult driver education classroom instruction to be consistent with the Department of Public Safety (DPS) rule at 36 TAC §17.27(b). The same six hour correction to Module One was made to the Program of Organized Instruction in Driver Education and Traffic Safety, also known as the "POI-DE Program Guide" to comply with the aforementioned DPS rule.

The adopted rules amend §84.601, Additional Procedures for Student Certification and Transfers, by reducing the record retention period for Texas schools of driver education course completion certificates from seven years to three years, or as mandated by the school district.

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 August 30, 2024, issue of the Texas Register (49 TexReg 6669). The public comment period closed on September 30, 2024. The Department received comments from six interested parties in response to the required summary of the proposed rules, which was posted on the Department's website and distributed on August 20, 2024, the same day that the proposed rules were filed with the Texas Register, but before the official publication of the proposed rules and the official start of the public comment period. The Department received comments from 30 interested parties on the published proposed rules during the official public comment period. The public comments are summarized below.

Comments in Response to the Published Proposed Rules

Comment: Nine written comments were submitted related to the published rules proposing reduction of minimum classroom instruction course hours from 32 hours to 24 hours in the minor and adult driver education course as contained in the published proposed rules in 16 TAC Chapter 84, Subchapter M. The written comments submitted were five in favor and four opposed. Four comments representing four interested parties who opposed the reduction argued: (1) young students would not be able to retain sufficient knowledge and understanding of the traffic laws to operate motor vehicles properly and endanger lives; (2) that 32 hours of classroom instruction allowed the presentation of curriculum at a good pace for learning; and (3) 24 hours of instruction is insufficient time to present the growing number of state mandated topics to students thereby weakening curriculum. Five comments representing 25 interested parties who supported the reduction argued that the change: (1) would provide more flexibility for providers and instructors in the content and manner by which course materials were presented to students; (2) allows providers to concentrate on important issues in a more efficient manner promoting more innovative course creation; and (3) benefits in-person providers by providing parents with fewer trips to the provider's location for instruction due to the reduction in classroom hours.

Department Response: The Department appreciates the input received from the commenters on the published rules. The Department agrees with the comments in support of the reduction in the minimum classroom instruction hours from 32 hours to 24 hours, and the Department disagrees with the comments opposing the change. The Legislature specifically changed Occupations Code §1001.101 in HB 1560 pursuant to a recommendation from the Sunset Commission in the 2020 Sunset Report (Report) to remove prescriptive curriculum hours from statute and authorize TDLR to set minimum hours of instruction in rule. The change in hours is consistent with the recommendation of the Driver Education and Traffic Safety Advisory Committee. Moreover, the rule change cites a "minimum" number of hours for classroom instruction. Driver education providers when creating their courses may choose additional hours of instruction for their curriculum. The Department expects that providers will design their courses to best promote subject matter mastery for students, address parents and instructor concerns, and emphasize the overall safety of the public. The Department made no change to the proposed rules as a response to these comments.

Comment: One commenter submitted comments seeking amendment to the proposed rules including: (1) 16 TAC §84.51(a) citing an error in the calculation in the number of minutes allowed for multimedia content in parent-taught courses due to the reduction in the minimum instructional classroom hours; and (2) requesting a revision to 16 TAC §84.51(b) to clarify the provider responsibilities in the event of a provider change in course curriculum. The commenter further submitted observations on the Department's rule deletion at 16 TAC §84.500(b)(1)(T) removing driver training provider and public school collection of collision data related to a discrete class of driver education students, and the Department's rule revision at 16 TAC 84.500(e) regarding personal validation requirements for online providers.

Department Response: The Department appreciates the input received from the commenter on these specific issues in the published rules. The Department agrees with the arguments made by the commenter and has made changes to the proposed rules as recommended by the Driver Education and Traffic Safety Advisory Committee at its October 3, 2024, meeting. The change to §84.51(a) replaces "640 minutes" with "720 minutes." The change to §84.51(b) clarifies that any substantive change in course curriculum or materials "must be consistent with applicable law, department rules and the POI-DE."

Due to the change made in subsection (b), the Department has determined that subsection (c) is no longer needed as it is duplicative of amended subsection (b). Thus, 16 TAC §84.51(c) has been removed and the subsequent subsections have been reorganized accordingly.

The Driver Education and Traffic Safety Advisory Committee did not recommend any changes to the proposed rules in response to the comments on §84.500(b)(1)(T) and §84.500(e), so the Department did not make any changes to the proposed rules in response to those comments. The commenter filed the same comments before the official comment period, and they are addressed here. The Department made no other changes to the proposed rules as a response to these comments.

Comment: One commenter submitted comments in support of the Department changes made at 16 TAC §§84.500(b)(1)(A)(i), 85.501(b)(4), 84.501(c)(3), and 84.501(i). The commenter also proposed an amendment to 16 TAC 84.82(b)(12) relating to driver training provider student enrollment contracts.

Department Response: The Department appreciates the comments in support of the proposed rule changes and declines to make any change to 16 TAC §84.82(b)(12) as that rule section was not included in this rulemaking and therefore, is outside of the scope of this proceeding. The Department may open a future rulemaking to address issues at a later date. The Department made no change to the proposed rules as a response to this comment.

Comment: One commenter offered a comment in support of the Department's changes to 16 TAC 84.501(d)(1) relating to the use of timers in online driver education courses to ensure the right amount of educational content is disseminated to students and aid in content and personal validation.

Department Response: The Department appreciates the comment in support the proposed rule change. The Department made no change in the proposed rules as a response to this comment.

Comments in Response to the Posted Summary

Comment: One commenter submitted a comment asking questions regarding what would be the Commission's decision on the minimum number of driver education instruction hours and when would any change take effect?

Department Response: The Department appreciates the comment in support the proposed rule change. The Department made no change in the proposed rules as a response to this comment.

Comment: Three written comments from three interested parties were submitted relating to the reduction of minimum classroom instruction course hours from 32 hours to 24 hours in the minor and adult driver education course as contained in the published proposed rules in 16 TAC Chapter 84, Subchapter M. These comments were filed in opposition to the proposed reduction in instructional hours. The commenters argued that the reduction in instructional hours would (1) not allow sufficient time to teach necessary instructional material; (2) increase the incidence of driver crashes and fatalities among young drivers; and (3) slow developmental driving skills in young drivers.

Department Response: The Department disagrees with the comment's opposition to the reduction in the minimum classroom instruction hours from 32 hours to 24 hours. The Legislature specifically changed Occupations Code §1001.101 in HB 1560 pursuant to a recommendation from the Sunset Commission in the 2020 Sunset Report (Report) to remove prescriptive curriculum hours from statute and authorize TDLR to set minimum hours of instruction in rule. The change in hours is consistent with the recommendation of the Driver Education and Traffic Safety Advisory Committee. Moreover, the rule change cites a "minimum" number of hours for classroom instruction. Driver education providers when creating their courses may choose additional hours of instruction for their curriculum. The Department made no change to the proposed rules as a response to these comments.

Comment: One commenter requested that driver education observation instruction hours be abolished as they served little purpose. The driver education provider could provide the observation instruction as a charged service where needed.

Department Response: The Department disagrees with the comment as observation instruction is required under Education Code §1001.101(b). Such a change would require legislative intervention. The Department made no change to the proposed rules as a response to these comments.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Driver Training and Traffic Safety Advisory Committee met on October 3, 2024, 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 16 TAC §84.51 and §84.600, and the Program of Organized Instruction in Driver Education and Traffic Safety, also known as the "POI-DE Program Guide" made in response to public comment and Department recommendations as explained in the Section-by-Section summary. At its meeting on October 23, 2024, the Commission adopted the proposed rules with changes as published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §84.2, §84.3

STATUTORY AUTHORITY

The rules are adopted under Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001, 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, Chapter 51, and Texas Education Code, Chapter 1001. 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 adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405453

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER C. DRIVER EDUCATION SCHOOLS AND INSTRUCTORS

16 TAC §§84.40, 84.43, 84.44, 84.46

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405454

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER D. PARENT-TAUGHT DRIVER EDUCATION

16 TAC §84.50

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405455

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

16 TAC §84.51, §84.52

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405462

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

16 TAC §84.51, §84.52

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

§84.51.Submission of Parent-Taught Course for Department Approval.

(a) If the curriculum and all materials meet or exceed the applicable minimum standards set forth in the Code, the department will approve the course. No more than 720 minutes of the required hours of classroom instruction delivered via multimedia may be counted.

(b) Notification of approval or denial will be sent to the requesting entity. Deficiencies will be noted in cases of denial. Any substantive change in course curriculum or materials must be consistent with applicable law, department rules and the POI-DE.

(d) Course identification. All parent-taught courses must display the parent-taught provider name and license number assigned by the department on the entity's website and the registration page used by the student to pay any monies, provide any personal information, and enroll.

(e) A parent-taught driver education provider may accept students redirected from a website if the student is redirected to a webpage that clearly identifies the parent-taught provider and license number offering the course. This information must be visible before and during the student registration and course payment processes.

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 November 8, 2024.

TRD-202405456

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER E. PROVIDERS

16 TAC §84.60, §84.63

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

Filed with the Office of the Secretary of State on November 8, 2024.

TRD-202405457

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER G. GENERAL BUSINESS PRACTICES

16 TAC §84.80

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

Filed with the Office of the Secretary of State on November 8, 2024.

TRD-202405458

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER M. CURRICULUM AND ALTERNATIVE METHODS OF INSTRUCTION

16 TAC §§84.500 - 84.502, 84.504

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405463

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

16 TAC §§84.500 - 84.505

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

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 November 8, 2024.

TRD-202405461

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

SUBCHAPTER N. PROGRAM INSTRUCTION FOR PUBLIC SCHOOLS, EDUCATION SERVICE CENTERS, AND COLLEGES OR UNIVERSITIES COURSE REQUIREMENTS

16 TAC §84.600, §84.601

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

§84.600.Program of Organized Instruction.

(a) To be approved under this subchapter, a driver education plan must include one or more of the following course programs.

(1) Core program. This program must consist of a minimum of 24 hours of classroom instruction; seven hours of behind-the-wheel instruction in the presence of a certified instructor; seven hours of in-car observation in the presence of a certified instructor; and 30 hours of behind-the-wheel supervised practice, including at least 10 hours of instruction that takes place at night, certified by a parent or guardian in the presence of an adult who meets the requirements of Texas Transportation Code, §521.222(d)(2).

(2) In-car only program. This program must consist of at least seven hours of behind-the-wheel instruction in the presence of a certified instructor; seven hours of in-car observation in the presence of a certified instructor; and 30 hours of behind-the-wheel supervised practice, including at least 10 hours of instruction that takes place at night, certified by a parent or guardian in the presence of an adult who meets the requirements of Texas Transportation Code, §521.222(d)(2).

(3) Classroom only program. This program must consist of a minimum of 24 hours of classroom instruction.

(b) The minimum requirements of the driver education program must be met regardless of how the course is scheduled. The following applies to all minor and adult driver education programs.

(1) A learner portion of a DE-964 must be issued to a student to obtain a learner's license upon completion of Module One of the POI-DE. A driver license portion of the DE-964 must be given when all in-car laboratory and classroom instruction has been completed by the student.

(2) In-car laboratory lessons may be given only after the student has obtained a learner's license.

(3) Instruction may be scheduled any day of the week, during regular school hours, before or after school, and during the summer.

(4) Instruction must not be scheduled before 5:00 a.m. or after 11:00 p.m.

(5) The driver education classroom phase must have uniform beginning and ending dates. Students must proceed in a uniform sequence. Students must be enrolled and in class before the fifth hour of classroom instruction in a 24-hour program and the 12th hour of classroom instruction in 56-hour or semester-length programs.

(6) Self-study assignments occurring during regularly scheduled class periods must not exceed 25 percent of the course and must be presented to the entire class simultaneously.

(7) The driver education course must be completed within the timelines established by the superintendent, college or university chief school official, or ESC director. This must not circumvent attendance or progress. Variances to the established timelines must be determined by the superintendent, college or university chief school official, or ESC director and must be agreed to by the parent or legal guardian.

(8) Public schools are allowed five minutes of break within each instructional hour in all phases of instruction. A break is an interruption in a course of instruction occurring after the lesson introduction and before the lesson summation. It is recommended that the five minutes of break be provided outside the time devoted to behind-the-wheel instruction so students receive a total of seven hours of instruction.

(9) Driver education training offered by the public school must not exceed six hours per day. Public schools may include five minutes of break per instructional hour as identified in §84.500 (relating to Courses of Instruction for Driver Education Providers). In-car instruction provided by the public school must not exceed four hours per day as follows:

(A) four hours or less of in-car training; however, behind-the-wheel instruction must not exceed two hours per day; or

(B) four hours or less of simulation instruction; or

(D) any combination of the methods delineated in this subsection that does not exceed four hours per day.

(10) Driver education training certified by the parent is limited to two hours per day.

(c) Course content, minimum instruction requirements, and administrative guidelines for each phase of driver education classroom instruction, in-car training (behind-the-wheel and observation), simulation, and multicar range must include the instructional objectives established by the department, as specified in this subsection and the POI-DE, and meet the requirements of this subchapter. Sample instructional modules may be obtained from the department. Schools may use sample instructional modules developed by the department or develop their own instructional modules based on the approved instructional objectives. The instructional objectives are organized into the modules outlined in this subsection and include objectives for classroom and in-car training (behind-the-wheel and observation), simulation lessons, parental involvement activities, and evaluation techniques. In addition, the instructional objectives that must be provided to every student enrolled in a minor and adult driver education course include information relating to litter prevention; anatomical gifts; safely operating a vehicle near oversize or overweight vehicles; distractions, including the use of a wireless communication device that includes texting; motorcycle awareness; alcohol awareness and the effect of alcohol on the effective operation of a motor vehicle; and recreational water safety. A student may apply to the Texas Department of Public Safety (DPS) for a learner's license after completing six hours of instruction as specified in Module One of the POI-DE.

(d) A public school may use multimedia systems, simulators, and multicar driving ranges for instruction in a driver education program.

(e) Each simulator, including the instructional programs, and each plan for a multicar driving range must meet state specifications developed by the department. Simulators are electromechanical equipment that provides for teacher evaluation of perceptual, judgmental, and decision-making performance of individuals and groups. With simulation, group learning experiences permit students to operate vehicular controls in response to audiovisual depiction of traffic environments and driving emergencies. The specifications are available from the department.

(f) A minimum of four periods of at least 55 minutes per hour of instruction in a simulator may be substituted for one hour of behind-the-wheel and one hour observation instruction. A minimum of two periods of at least 55 minutes per hour of multicar driving range instruction may be substituted for one hour of behind-the-wheel and one hour observation instruction relating to elementary or city driving lessons. However, a minimum of four hours must be devoted to behind-the-wheel instruction and a minimum of four hours must be devoted to observation instruction.

(g) A school may not permit more than 36 students per driver education class, excluding makeup students.

(h) All behind-the-wheel lessons must consist of actual driving instruction. Observation of the instructor, mechanical demonstrations, etc., must not be counted for behind-the-wheel instruction. The instructor must be in the vehicle with the student during the entire time behind-the-wheel instruction is provided.

(i) Minor and adult driver education programs must include the following components.

(1) Driver education instruction is limited to eligible students between the ages of 14-18 years of age, who are at least 14 years of age when the driver education classroom phase begins and who will be 15 years of age or older when the behind-the-wheel instruction begins. Students officially enrolled in school who are 18-21 years of age may attend a minor and adult driver education program.

(2) Motion picture films, slides, videos, tape recordings, and other media that present concepts outlined in the instructional objectives may be used as part of the required instructional hours of the classroom instruction. Units scheduled to be instructed may also be conducted by guest speakers as part of the required hours of instruction. Together, these must not exceed 720 minutes of the total classroom phase.

(3) Each classroom student must be provided a driver education textbook or driver education instructional materials approved by the department.

(4) A copy of the current edition of the "Texas Driver Handbook" or equivalent study material must be made available to each student enrolled in the classroom phase of the driver education course.

(5) No public school should permit a ratio of less than two, or more than four, students per instructor for behind-the-wheel instruction, except behind-the-wheel instruction may be provided for only one student when it is not practical to instruct more than one student, for makeup lessons, or if a hardship would result if scheduled instruction were not provided. In each case when only one student is instructed:

(A) the school must obtain a waiver signed and dated by the parent or legal guardian of the student and the chief school official stating that the parent or legal guardian understands that the student may be provided behind-the-wheel instruction on a one-on-one basis with only the instructor and student present in the vehicle during instruction;

(B) the waiver may be provided for any number of lessons; however, the waiver must specify the exact number of lessons for which the parent is providing the waiver; and

(C) the waiver must be signed before the first lesson in which the parent is granting permission for the student to receive one-on-one instruction.

(j) Colleges and universities that offer driver education to adults must submit and receive written approval for the course from the department prior to implementation of the program. The request for approval must include a syllabus, list of instructors, samples of instructional records that will be used with the course, and information necessary for approval of the program.

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 November 8, 2024.

TRD-202405459

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

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

CHAPTER 96. ELECTRIC VEHICLE SUPPLY EQUIPMENT

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 96, regarding the Electric Vehicle Charging Stations (EVS) program, §§96.1, 96.90, and 96.91 without changes to the proposed text as published in the August 23, 2024, issue of the Texas Register (49 TexReg 6384). These rules will not be republished.

The Commission also adopts new rules at 16 TAC Chapter 96, Subchapter A, §96.10 and §96.14; Subchapter B, §§96.20 - 96.24, and 96.30; Subchapter C, §96.60; Subchapter D, §§96.70 - 96.72, and 96.74; Subchapter E, §96.80 and §96.83; and Subchapter G, §96.100 regarding the Electric Vehicle Charging Stations program, with changes to the proposed text as published in the August 23, 2024, issue of the Texas Register (49 TexReg 6384). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 96, implement Senate Bills (SB) 1001 and 1732, 88th Legislature, Regular Session (2023), and Texas Occupations Code, Chapter 2311, Electric Vehicle Charging Stations, and Electric Vehicle Supply Equipment (EVSE).

The adopted rules are necessary to introduce the Department's administrative rulemaking effort for the implementation of SB 1001 and 1732, and Texas Occupations Code, Chapter 2311 for the EVS program, which address rules relating to: (1) electric vehicle supply equipment definitions; (2) registration and EVSE provider statutory and rule compliance deadlines; (3) EVSE registration and renewal requirements; (4) investigation and inspection of EVSE; (5) EVSE provider duties and responsibilities; (6) program fees; (7) enforcement provisions; (8) general technical requirements for EVSE providers from supplemental rules and regulation publications; and (9) implementing the recommendations of the EVSE Stakeholder Workgroup (Workgroup), as authorized by SB 1001, Article 3, and public comment received by the Department from the "First Look" posting of a working draft version of the EVS adopted rules.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions

The adopted rules create new §96.1, Authority, to identify the statutory provisions under which the rule chapter derives its regulatory jurisdiction.

The adopted rules create new §96.10, Definitions, to establish the definitions to be used in the rule chapter. On October 15, 2024, the Workgroup amended the definition for "charging unit" to clarify that the term had the same meaning as the definition for "electric vehicle supply equipment" for consistency and to lessen confusion within the industry.

The adopted rules create new §96.14, Effective Dates for Electric Vehicle Supply Equipment Compliance, to provide notice to EVSE providers of the deadlines for registration and operational standards for regulated electric vehicle charging units. In response to public comments, changes were made to the published proposed rule text to: (1) relocate the text of subsection (a) to §96.20 and relabel the remaining provisions accordingly; (2) add language clarifying when charging units are considered to be operating; and (3) add language clarifying a reference to a "state" rebate program. On October 15, 2024, the Workgroup amended and extended the deadline for EVSE operational compliance to January 1, 2030, for charging units and legacy equipment installed before March 1, 2025, allowing time for providers to perform any necessary modifications to such equipment to comply with the Occupations Code, Chapter 2311 and the rules.

Subchapter B. Electric Vehicle Supply Equipment Registration

The adopted rules create new §96.20, Electric Vehicle Supply Equipment Registration Required, to require an EVSE provider to register each charging unit prior to making it available for commercial service to electric vehicle owners. In response to public comments, changes were made to the published proposed rule text to add language relocated from §96.14(a), remove unnecessary language, and add clarifying language.

The adopted rules create new §96.21, Electric Vehicle Supply Equipment Registration Requirements, to: (1) identify the prerequisites for initial charging unit registration; (2) set the length of the registration term at one year; and (3) set forth the required procedures related to changes in controlling provider status. On October 15, 2024, the Workgroup amended new §96.21 to clarify that installation and operation of EVSE must comply with Occupations Code, Chapter 1305, the Texas Electrical Safety and Licensing Act.

The adopted rules create new §96.22, Electric Vehicle Supply Equipment Registration Renewal Requirements, to detail the annual registration renewal procedures for electric vehicle charging units.

The adopted rules create new §96.23, Electric Vehicle Supply Equipment Registration Changes, to establish the registration procedures by which an EVSE provider may add to or reduce the number of charging units at an existing location. On October 15, 2024, the Workgroup amended new §96.23 to clarify that installation and operation of EVSE must comply with Occupations Code, Chapter 1305, the Texas Electrical Safety and Licensing Act.

The adopted rules create new §96.24, Certificate of Registration, to establish how an EVSE provider may provide a copy of the issued registration certificate to a member of the public upon request. In response to public comments, clarifying changes were made to the published proposed rule text to replace "registrant" with "provider."

The adopted rules create new §96.30, Exemptions, which illustrate exceptions under which electric vehicle supply equipment will not be regulated by the Department. On October 15, 2024, the Workgroup amended new §96.30 to clarify that the Department may extend an exemption to an EVSE provider from an administrative requirement if certain conditions are determined to exist that would hinder compliance with rule or state law, consistent with Occupations Code §2311.0206.

Subchapter C. Inspections and Investigations

The adopted rules create new §96.60, EVSE Inspections and Investigations, to state the Department's authority to carry out inspections and investigations of EVSE providers and equipment. On October 15, 2024, the Workgroup amended new §96.60 to clarify that the Department would not perform on-site EVSE inspections until March 1, 2026, except for such action conducted as a part of an investigation pursuant to a filed consumer complaint.

Subchapter D. Responsibilities of the Provider

The adopted rules create new §96.70, Notification of Department Jurisdiction and Complaint Information, to require the EVSE provider to display a notice to consumers on its charging units or the provider's digital network that instruct consumers on how to file complaints about their vehicle charging experience with the Department. In response to public comments, changes were made to the published proposed rule text in subsection (b) to clarify that the notification can appear either on the charging unit's visual display or the provider's digital network.

The adopted rules create new §96.71, Consumer Information Sticker, to require EVSE providers to affix an adhesive notice on each registered electric vehicle charging unit that contains the specific information required in §96.70. In response to public comments, changes were made to the published proposed rule text in subsection (a) to add clarifying language and remove unnecessary language and in subsection (c) to change from 30 to 60 the number of days within which a sticker must be replaced.

The adopted rules create new §96.72, Damaged Electric Vehicle Supply Equipment, to instruct EVSE providers on how to address onsite nonfunctional electric vehicle charging units and publish status warnings to consumers. In response to public comments, changes were made to the published proposed rule text to remove the term "recalled" and to add language clarifying that a provider is not required to physically relocate equipment from its current location while under repair.

The adopted rules create new §96.74, Recordkeeping Requirements, to require EVSE providers to maintain and make available specific types of electric vehicle supply equipment records to Department personnel upon request for three years.

Subchapter E. Fees

The adopted rules create new §96.80, EVSE Registration Fees, to establish the fees for the issuance and renewal of EVSE charging unit registration and consumer information stickers. On October 15, 2024, the Workgroup amended new §96.80 to clarify that initial registration and renewal fees authorized by Occupations Code §2311.0202 would be charged to an EVSE provider for each electric vehicle charging port affixed to a charging unit.

The adopted rules create new §96.83, Fee Policy and Disclosures, to establish the required information to be disclosed to consumers regarding the determination of fees and surcharges associated with an electric vehicle charging transaction. In response to public comments, changes were made to the published proposed rule text in subsection (d) to provide clarity on the applicable requirements. On October 15, 2024, the Workgroup amended new §96.83 to extend the time for compliance with this rule section to March 1, 2026, for those providers installing charging units on or after March 1, 2025, in order to allow sufficient time for software and firmware development.

Subchapter F. Enforcement Provisions

The adopted rules create new §96.90, Administrative Penalties and Sanctions, to establish the authority of the Commission and the executive director of the Department to impose administrative penalties and sanctions against an individual or entity who violates a statute or rule applicable to the EVS program.

The adopted rules create new §96.91, Enforcement Authority, to establish the authority of the Commission and the Department to enforce the statutes and rules applicable to the EVS program.

Subchapter G. General Technical Requirements

The adopted rules create new §96.100, Adoption by Reference, to adopt selected publications and regulations into the rule chapter to supplement the administration and enforcement of the EVS program. In response to public comments, changes were made to the published proposed rule text to provide clarity on the applicable sections of the NIST handbooks.

PUBLIC COMMENTS

Comments in Response to the Published Proposed Rules

The Department received comments from a number of interested parties during the official 30-day comment period. These parties include the Texas Food and Fuel Association (TFFA); the Joint EV Parties (Joint Parties), which includes ABB E-Mobility, the Alliance for Transportation Electrification, Alliance for Automotive Innovation, ChargePoint, Electrify America, EVgo, National Electrical Manufacturers Association (NEMA jointly and individually), Rivian, SWITCH, and Tesla (jointly and individually); CPS Energy; and Walmart. The Department received one comment from a private interested party during this period.

Many of the interested parties shared common concerns about the proposed rule sections and such comments will be combined in this document and the Department responses where appropriate. Some commenters filed comments in their sole capacity and unique comments will be addressed separately. The Department appreciates the comments received from the interested parties on the proposed rules and looks forward to working with all interested parties in creating a responsive and positive business environment for EVSE providers that will deploy an efficient, reliable and safe electric vehicle charging network for the public in the State of Texas.

TFFA Comments

Comment: TFFA filed comments requesting amendments to the proposed rules including: (1) opposing additional requirements in the proposed rules beyond that in the applicable sections in the National Institute of Standards and Technology (NIST) Handbooks 44 and 130 as problematic for providers required to rapidly implement hardware, firmware and software changes; (2) objecting to the requirements of §96.21 and §96.23 requiring a licensed electrical contractor to install the charging units at a location; (3) requesting that the Department issue a two-year registration in §96.21; (4) proposing the deletion of §96.24 suggesting the provision creates an undue burden in programming and digital network changes for providers; (5) promoting a rule change to §96.74 to limit Department requests for records directly related to the installation of equipment excluding business sensitive and proprietary information; and (6) recommending that the proposed rules adopt the National Electric Vehicle Infrastructure (NEVI) Standards and Requirements for terms not defined in statute for consistency within the industry.

Department Response: The Department appreciates the comments from TFFA. The Department agrees with TFFA's comment regarding issue (1), and has, in the interests of clarity and Occupations Code §2311.0303(a), made changes to the proposed rules by including specific reference to Section 3.40, NIST Handbook 44, and Section 2.34, NIST Handbook 130, in §96.100(a)(1) and (a)(2).

The Department agrees with the TFFA comments related to issue (2). Addressing this issue, Occupations Code §2311.0303(b) requires that EVSE be installed and operated in accordance with Occupations Code, Chapter 1305. That chapter governs the electrician's occupation and the classes of electrician that are required to perform the designated electrical tasks within that statutory chapter under the auspices of a licensed electrical contractor. Section 96.21 and §96.23 reflect the legal requirements imposed by Occupations Code, Chapters 1305 and 2311. On October 15, 2024, the Workgroup amended new §96.21 and §96.23 to clarify that installation and operation of EVSE must comply with Occupations Code, Chapter 1305, the Texas Electrical Safety and Licensing Act.

The Department disagrees with the TFFA comments related to issue (3). The Department has established a one-year registration at this time. The reason is that SB 1001, Section 4 requires that EVSE registration commence on March 1, 2025, which is in the middle of TDLR's fiscal year. In keeping with the legislative authority granted by SB 1001, the Department determined that a one-year registration term would best address its ability to reasonably incur the necessary costs and obtain revenues sufficient to administer this program. The Department may revisit the registration term duration in a future rulemaking. The Department made no change to the proposed rules as a response to this comment.

The Department declines to delete §96.24 as recommended in issue (4). The Department sees no undue burden imposed on EVSE providers to choose one of the methods contained within the proposed rule to provide a copy of its registration to a consumer upon request. The Department leaves it to the provider to choose its mode of compliance with a consumer's request for a copy of its registration. The Department agrees in part with TFFA's request to use the word "provider" throughout the rule chapter and revised this rule section to include the term in §96.24 for consistency throughout the proposed rules.

The Department disagrees with the TFFA comments related to issue (5). The Department contends that §96.74 is necessary for the administration of the program as contemplated by SB 1001 and 1732. These documents are essential for the Department to perform its inspection and enforcement duties. The inspection and investigatory process is governed by 16 TAC Chapter 60, Subchapter H, and will be conducted in accordance with those rule sections, including the Department's handling of confidential materials. The Department made no change to the proposed rules as a response to this comment.

The Department disagrees with the TFFA comments related to issue (6). The Department is currently employing the terms mandated by the Legislature in SB 1001 and 1732, and has determined that using consistent rule language reduces public confusion. Neither SB 1001 nor SB 1732 adopted NEVI regulations in Occupations Code, Chapter 2311. It did, however, adopt NIST standards in the statutory chapter at §2311.0303(a). The Department made no change to the proposed rules as a response to this comment.

TFFA and Walmart Comments

Comment: TFFA and Walmart filed comments in common requesting amendments to the proposed rules including: (1) the establishment of a variance application process in §96.14 to allow providers additional time to comply with proposed operational compliance requirements for existing charging units, legacy chargers, and those units installed prior to March 1, 2025, or alternatively, urge the Department to allow providers in rule sufficient time for providers to perform the hardware and software work necessary to meet operational compliance for pre-March 1, 2025 charging units and legacy chargers; (2) seeking a registration exemption for charging units installed prior to March 1, 2025 in §96.20, including those not subject to operational compliance requirements; (3) proposing a "self-certification" process in §96.21 to expedite the application for initial registration and renewal of charging units for providers; (4) recommending that the Department adopt the receipt and price display requirements in the applicable sections of NIST Handbooks 44 and 130; (5) recommending revision to §96.71 to give a provider 60 days from the time the Department discovers a damaged or removed consumer information sticker to come into compliance with rule requirements; (6) removing the term "recalled" from §96.72 as that discrete EVSE class is not contemplated by the statute, and requesting that the proposed rule be clarified that the language "removed from service" does not mean the physical removal of a damaged charging unit; and (7) proposing the deletion of §96.70 as TFFA and Walmart contends the section is overly onerous, redundant and unreasonably costly by requiring a provider to post complaint and contact information in three different manners.

Department Response: The Department appreciates the comments from TFFA and Walmart. The Department recognizes the issues raised by the commenters in issue (1) and agrees that providers need sufficient time to bring charging units installed prior to March 1, 2025, into operational compliance with the rules and the Code. Therefore, §96.14(a) has been amended to address the issue by allowing pre-March 1, 2025, installed charging units to come into operational compliance not later than January 1, 2030. The Department further recognizes that Occupations Code §2311.0206 allows the Department to exempt EVSE providers from requirements established by law, if at least one of three conditions is determined to be present. To that end, the Department has amended §96.30(a) to either establish additional exemptions by rule, or consider petitions for exemption on a case-by-case basis.

The Department disagrees with the TFFA and Walmart comments related to issue (2). While the Department recognizes and agrees with the practical aspects of time extensions for operational compliance for legacy EVSE in §96.14, the Department disagrees that the same equipment should be exempt from registration. SB 1001 adopted a registration requirement for EVSE and the Department is obligated to implement legislative mandates. Registration is the means by which the EVSE deployment can be monitored. The Department intends to make the process efficient and simple. Neither commenter has presented sufficient reason to explain why legacy equipment should not be registered at minimum. EVSE registration allows the Department to receive complaints on such equipment, monitor deployment of the charging infrastructure statewide, and ensure the reliability and safety of the equipment and facilities. The Department made no change to the proposed rules as a response to this comment.

The Department disagrees with the TFFA and Walmart comments related to issue (3). The Department is not clear on what is meant by a "self-certification" amendment for §96.21. If what is meant by the commenters is providing a "self-service" process to register charging units, then the Department is currently developing an automated process by which providers can "self-register" and renew registration of charging units ready for commercial operation. Staff is targeting a "go-live" date for the system of December 1, 2024. The start for registration deadline is March 1, 2025. Staff will be scheduling a future demonstration for the system for interested parties with training and expects that, once operational, there will be little delay in registration. The Department made no change to the proposed rules as a response to this comment.

The Department agrees with the TFFA and Walmart comment related to issue (4). Occupations Code §2311.0303(a) adopts the NIST specifications and tolerances. The proposed rules at §96.83(d) and §96.100(a) have been amended to specifically adopt NIST Handbook 44, Section 3.40, and NIST Handbook 130, Section 2.34.

The Department agrees and disagrees in part with the TFFA and Walmart comment related to issue (5). The Department agrees with the commenters' argument requesting more time to replace a damaged or missing consumer information sticker (CIS) in §96.71. The Department amends §96.71(c) to allow a 60-day cure period to replace a damaged or missing CIS. The Department disagrees with the part of issue (5) where the commenters recommend that the 60-day clock starts from the time that the Department discovers the condition requiring replacement of the sticker. The Department contends that it is the responsibility of the provider to inspect their EVSE locations as part of their regular maintenance rotations and, if they discover a damaged or missing CIS, they are expected to order a replacement sticker from the Department. The 60-day clock starts from the time the provider discovers the damaged or missing CIS. If the Department receives notice of a damaged or missing CIS before the provider, it will inform the provider and appropriate action is expected from the provider under the proposed rules. The Department made no further change to the proposed rules as a response to this comment.

Four commenters, including TFFA, Walmart, NEMA and a private interested party filed comments related to issue (6). The Department, therefore, deletes the word "recalled" from §96.72 and has added §96.72(b) to clarify that a provider is not required to physically remove EVSE from its location while under repair. The Department declines, however, to delete §96.72 as recommended by TFFA.

The Department declines to delete §96.70 as recommended by TFFA in issue (7). However, the Department agrees with TFFA and Walmart that the proposed rule imposed unreasonable consequences on providers if not given an option on the manner a provider transmits complaint filing information to consumers concerning improperly functioning charging units. Occupations Code §2311.0304(c) requires that complaint information be disclosed on the electric supply equipment or on the provider's digital network. Thus, the Department has amended the language in §96.70(b) to reflect the same.

TFFA, NEMA and Joint Parties Comments

Comment: TFFA, NEMA and the Joint Parties filed comments requesting amendments to the proposed rules including: (1) utilizing the statutory EVSE definition throughout the rules, and replacing the definition for "legacy charger", and "charging unit" in §96.10 with definitions for "charging connector" and "combined charging system" as it is advanced that "charging unit" is a term and definition not commonly used within the industry and causes confusion; (2) extending the deadline for operational compliance requirements for charging units installed prior to March 1, 2025 and legacy chargers in §96.14 to avoid additional expense to either retrofit or replace the affected charging units, and allow providers sufficient time to comply with the proposed rule; (3) requesting an exemption for EVSE from department inspection in §96.60 for legacy chargers and chargers installed prior to March 1, 2025, as it is stated that it would be financially and technologically challenging to providers; and (4) opposing uniform registration fees in §96.80 for Level 2 chargers and DC fast chargers (DCFC), and charging registration fees per connector.

Department Response: Five commenters, including TFFA, NEMA, the Joint Parties and a private interested party filed comments recommending the replacement of the "charging unit" definition. The Department disagrees with the comment related to issue (1) made by the commenters calling for replacement definitions in §96.10. The term "charging unit" is derived from the Legislature in SB 1001 and was employed in statute at Occupations Code §2311.0302 and §2311.0306. The Department has included the term as adopted in the legislative bill. On October 15, 2024, the Workgroup amended the definition for "charging unit" to clarify that the term had the same meaning as the definition for "electric vehicle supply equipment" for consistency and to lessen confusion within the industry.

Regarding issue (2), the Department has considered the TFFA, NEMA and Joint Parties comments related to §96.14 and notes the possible financial and logistical complications that a March 1, 2025, operational compliance deadline could impose for charging units installed between June 18, 2023, and March 1, 2025. The Department agrees that a March 1, 2025, deadline is an inadequate amount of time to allow pre-March 1, 2025, EVSE to comply with operational standards imposed by law. The proposed rules initially reflected the transition language of Section 4 of SB 1001. Therefore, the Department amends §96.14 to address the concerns raised by the commenters, and at the October 15, 2024, Workgroup meeting, by extending the operational compliance deadline to January 1, 2030, for charging units installed prior to March 1, 2025. The Department declines to amend the proposed rules to allow a 10-year extension as recommended by TFFA as unnecessary at this time. The Department also moved previous subsection (a) of §96.14 to §96.20 as recommended by TFFA for greater clarity.

The Department disagrees in part with the commenters on issue (3) requesting an exemption from inspection in §96.60 for EVSE installed prior to March 1, 2025. Inspections of licensees are part of the standard regulatory responsibility of the Department for all of its programs. The EVS program is no exception. Tracking the deployment of the EVSE network and monitoring reliability and safety concerns are facilitated by program inspections. At present, Department inspections and investigations will be limited to requests for documentation as maintained by EVSE providers pursuant to proposed rule §96.74. However, the Department recognizes the concerns raised by the commenters and adds subsection (b) to §96.60 to clarify that on-site EVSE inspections will not commence until March 1, 2026, except in conjunction with a Department investigation pursuant to a filed consumer complaint.

The Department disagrees with issue (4) recommending a different set of fees for Level 2 chargers and DC fast chargers. Occupations Code Chapters 51 and 2311 authorize the Commission to set fees at a level reasonable and necessary to cover the costs of administering a program. The Department has conducted the analysis and determined that the proposed registration and renewal fees are consistent with state law. On October 15, 2024, the Workgroup amended the registration and renewal fees at §96.80 to clarify the charges to refer to electric vehicle charging ports affixed to charging units. Therefore, the noted fees will be assessed by port instead of by charging connector or plug. This change was made for greater industry consistency, to assist those agencies in counseling prospective providers seeking NEVI funds on registration fees to be assessed for their charging units by the Department, and to lessen confusion within the industry.

CPS Energy Comments

Comment: CPS Energy filed comments raising questions on the proposed rules including: (1) when is a charging unit considered in "operation" under §96.14 and subject to the proposed rule requirements; (2) whether EVSE installed prior to March 1, 2025 needs to certify the installation were conducted by a licensed electrical contractor and within manufacturer's specifications, as noted in §96.21; (3) whether EVSE installed prior to March 1, 2025 will be required to have consumer and complaint notices on its display or the digital network, and consumer receipts under §96.70; (4) whether §96.70 and §96.83 were duplicative; and (5) would EVSE installed prior to March 1, 2025 be required to adhere to NIST requirements on receipts and calibration standards.

Department Response: In response to question (1), the Department amended §96.14(a) to clarify that a charging unit is considered to be "in operation" once it is activated as part of the provider's digital network as defined by §96.10(5). Thus, once a charging unit is enabled to work by the provider through the provider's digital network as a part of a commercial transaction to charge an electric vehicle, it is subject to the requirements of the rule chapter unless exempted.

The Department notes in regard to question (2) that EVSE installed prior to March 1, 2025, is not subject to the requirement that it be registered with a statement affirming that the charging unit was installed and operates in accordance with Occupations Code, Chapter 1305. Section 96.21(a)(2) was amended to include the language "for charging units installed on or after March 1, 2025," to address CPS Energy's comment and clarify this exemption.

Addressing question (3) about whether legacy equipment will be required to have consumer and complaint notices on its display or the digital network, and consumer receipts, the Department notes that under §96.14(a), EVSE installed prior to March 1, 2025, is subject to exemption to operational compliance until January 1, 2030.

In response to question (4), the Department disagrees that §96.70(a) and (b) are duplicative with §96.83(c)(1) and (c)(2). Section 96.70(a) and (b) describes the specific information that must be a part of the customer notice. Section 96.83 simply references back to §96.70. The Department made no change to the proposed rules as a response to this comment.

Addressing CPS Energy question (5) about whether receipt and calibration standards in §96.83(d) would apply to legacy equipment, the Department again notes that any EVSE installed prior to March 1, 2025, would not be subject to operational compliance requirements until January 1, 2030.

NEMA Comments

Comment: NEMA, individually, filed comments raising concerns on the proposed rules including: (1) recommending at §96.74 that the proposed rules amend the recordkeeping requirements to focus on the preservation and production of records by the provider that directly affect the metering functions for the charging unit; and (2) recommending that a one year phase-in period be provided for complying with the fee policy and disclosures in §96.83 to allow for software development, and suggests consideration for a reduction in detail of information required under the proposed rule, and if a link to TDLR consumer complaint information would be a sufficient alternative.

Department Response: The Department disagrees with NEMA's issue (1) in its comments to amend §96.74 to have the proposed rule focus recordkeeping requirements on document preservation relating to the EVSE metering functions. The Department contends that in order to properly administer this program, it must be able to have access to information related to a registrant's regulated activities. The proposed rule mandates that a provider maintain documents sufficient to allow the Department to adequately assess the provider's compliance with applicable rule and law. Access to the information required by the proposed rule becomes particularly important if the Department receives a complaint. The Department made no change to the proposed rules as a response to this comment.

The Department agrees with NEMA's issue (2) in its comments to amend §96.83 to allow providers a one-year phase-in period to comply with the proposed rule fee policy and disclosure requirements to allow for software and firmware changes, and its recommendation to reduce required detail on disclosures and receipts required in the proposed rule. The proposed rule is derived from Occupations Code §2311.0304 and §2311.0305 and, therefore, required under state law. The requirements are rooted in SB 1001 and NIST Handbook 44. The Department notes that pre-March 1, 2025, EVSE are subject to temporary exemption to the requirements of this proposed rule section. On October 15, 2024, the Workgroup amended §96.83 and added a subsection (e) to allow EVSE providers that install charging units after March 1, 2025, additional time to make software and firmware changes. The deadline is extended for those units until March 1, 2026.

Private Interested Party Comments

Comment: One commenter filed comments raising concerns on the proposed rules including: (1) noting surveys that illustrate consumer dissatisfaction with EV charging station reliability and usability, and that an effective registration, inspection, disclosure and complaint resolution process was necessary for Texas EV drivers; (2) recommending the Department extend the operational compliance deadline to March 1, 2028 for currently installed charging stations; and (3) supporting the proposed rules related to complaint information and the consumer information sticker regulations at §96.70 and §96.71, and the recordkeeping requirements at §96.74.

Department Response: The Department agrees with the concerns raised by issue (1) about customer surveys measuring dissatisfaction regarding electric vehicle charging station reliability and usability. These two elements represent some of the most significant worries for vehicle owners affecting vehicle sales, and serve as an impediment to statewide infrastructure network deployment for providers. SB 1001 and 1732 were passed by the Legislature to assist providers and consumers to nurture a safe, innovative and robust charging infrastructure which, in turn, will assist the overall growth of the electric vehicle market as a whole. The Department made no change to the proposed rules as a response to this comment.

The Department agrees with the commenter on issue (2) that §96.14 should extend the operational compliance deadline for pre-March 1, 2025, installed charging units. The new date extends compliance to January 1, 2030. The Department amended §96.14(a) to reflect the theme of the commenter's recommendation.

The Department agrees with the commenter on issue (3) and thanks the commenter for its support. While the Department amended §96.70 and §96.71 to more closely comply with applicable law and to accommodate providers with additional time to replace missing or damaged consumer information stickers, there was no change to the recordkeeping requirements found in §96.74 as a result of this comment.

Walmart Comments

Comment: Walmart filed comments seeking amendment to the proposed rules including: (1) amending §96.74 to require a provider to only retain and tender EVSE records to the Department that are in its possession; (2) amending §96.90 to allow for a 60-day cure period prior to penalties being imposed; and (3) amending §96.100 to not require National Type Evaluation Program (NTEP) certification for registered EVSE in Texas with its adoption of NIST Handbook 44 and 130.

Department Response: The Department disagrees with issue (1) of Walmart's comments, which are similar to the comment raised by NEMA to §96.74. The Department contends that in order to properly administer this program, it must be able to have access to information related to a registrant's regulated activities. The proposed rule mandates that a provider maintain specific documents in designated subjects sufficient to allow the Department to adequately assess the provider's compliance with applicable rule and law. Access to the information required by the proposed rule becomes particularly important if the Department receives a complaint. The Department understands that if a record is beyond the care, custody or control of the registrant that it may not be tendered by a provider. However, the Department expects reasonable cooperation from registrants in performing the recordkeeping obligations imposed by the proposed rule. The Department made no change to the proposed rules as a response to this comment.

The Department disagrees with issue (2) of Walmart's comments regarding §96.90. The Department does not employ a "cure period" prior to penalties being imposed on a registrant in any of its programs. The Department has established administrative procedures, rules and laws that it follows when pursuing enforcement actions which are readily available in Occupations Code, Chapters 51 and 2311 and in the Texas Administrative Code. The Department will be establishing an enforcement plan for this program, which is commonly done with the participation of the public for final approval by the Commission. Providers will have an opportunity to provide input on the EVS enforcement plan and this idea can be considered at that point. The Department made no change to the proposed rules as a response to this comment.

The Department agrees with Walmart regarding issue (3) to not require National Type Evaluation Program (NTEP) certification for registered EVSE in Texas with the adoption of NIST Handbook 44 and 130 at this time. The Department in §96.21 and §96.23 have set specific registration prerequisites which include proper installation and operation in accordance with Occupations Code, Chapter 1305. The Department is not at this time requiring NTEP certification as a part of §96.100. The Department made no change to the proposed rules as a response to this comment.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the August 23, 2024, issue of the Texas Register (49 TexReg 6384). The public comment period closed on September 23, 2024. The Department received comments from two interested parties in response to the required summary of the proposed rules, which was posted on the Department's website and distributed on August 13, 2024, before the official publication of the proposed rules and the official start of the public comment period. The public comments are summarized below.

Comments in Response to the Posted Summary

Comment: Love's Travel Stops and Country Stores, Inc (Love's) filed a comment to the posted summary requesting an amendment seeking that a change in ownership noted in §96.21 be filed with the Department only as a notification and not a new registration application. The commenter is concerned that the application process could disrupt business activity.

Department Response: The Department disagrees with the comment as simple notification is insufficient, however, it recognizes that diverse ownership interests owning disproportionate shares can be characteristic of large business entities. To that end, the Department has amended §96.21(c) and added a provision that requires a new registration application to the Department only if there is a change in controlling provider.

Comment: TFFA filed a comment to the posted summary seeking a halt to the rulemaking process for 16 TAC Chapter 96 to allow the EVSE working group to have more time to express its concerns regarding the posted summary.

Department Response: The Department disagrees with this comment as there was no reasonable basis presented justifying a pause in the rulemaking process. Such an occurrence to the rulemaking would have prevented the Commission from adopting the proposed rules by the legislative deadline of December 1, 2024. The Department made no change to the proposed rules as a response to this comment.

COMMISSION ACTION

At its meeting on October 23, 2024, the Commission adopted the proposed rules with changes to Subchapter A, §96.10 and §96.14; Subchapter B, §§96.20 - 96.24, and 96.30; Subchapter C, §96.60; Subchapter D, §§96.70 - 96.72, and 96.74; Subchapter E, §96.80 and §96.83; and Subchapter G, §96.100 as published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §§96.1, 96.10, 96.14

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 1305 and 2311, 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, 1305 and 2311. 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 to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.10.Definitions.

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

(1) Charging unit - has the same definition as electric vehicle supply equipment.

(2) Code - Texas Occupations Code, Chapter 2311, Electric Vehicle Supply Equipment, as added by Senate Bill 1001, 88th Legislature, Regular Session (2023), and Electric Vehicle Charging Stations, as added by Senate Bill 1732, 88th Legislature, Regular Session (2023).

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

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

(5) Digital network - an online-enabled application, website, or system offered or used by an electric vehicle supply provider that allows a user to initiate a commercial transaction to dispense electrical energy from electric vehicle supply equipment to an electric vehicle.

(6) Electric vehicle supply equipment (EVSE) - a device or equipment used to dispense electrical energy to an electric vehicle.

(7) Electric vehicle supply provider (provider) - an owner or operator of electric vehicle supply equipment that is available and accessible to the public to provide electrical energy through a commercial transaction.

(8) Legacy charger - an electric vehicle supply device defined in §2311.0207 of the Code.

(9) NIST - The National Institute of Standards and Technology, a non-regulatory federal agency under the United States Department of Commerce which certifies and provides standard reference materials used to perform instrument calibrations, verifies the accuracy of specific measurements, and supports the development of new measurement methods.

(10) Texas Electrical Safety and Licensing Act - Texas Occupations Code, Chapter 1305.

§96.14.Effective Dates for Electric Vehicle Supply Equipment Compliance.

(a) Except as provided in subsection (b), a charging unit installed in this state must be operated on the electric vehicle supply provider's digital network in compliance with manufacturer specifications, the Code, and this chapter:

(1) not later than January 1, 2030, if the charging unit is installed before March 1, 2025, or is a legacy charger; or

(2) when the charging unit begins operating on the provider's digital network if the charging unit is installed on or after March 1, 2025.

(b) Unless exempted by the Code or this chapter, any public charging unit installed after December 1, 2024, for commercial use, and funded by a public grant or state rebate program must be equipped with a charging connector or plug type that is widely compatible with as many types of electric vehicles as practicable. Providers are not required to comply with this subsection until January 1, 2030.

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 November 8, 2024.

TRD-202405445

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER B. ELECTRIC VEHICLE SUPPLY EQUIPMENT REGISTRATION

16 TAC §§96.20 - 96.24, 96.30

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51, 1305 and 2311, 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 legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.20.Electric Vehicle Supply Equipment - Registration Required.

Unless exempted by Code or this chapter, an electric vehicle supply provider must register all electric vehicle supply equipment charging units in operation in this state with the department by March 1, 2025, before making it available for use on a digital network for a commercial transaction.

§96.21.Electric Vehicle Supply Equipment Registration Requirements.

(a) To register a charging unit of electric vehicle supply equipment at a new location, an electric vehicle supply equipment provider must submit:

(1) an application completed in a manner prescribed by the department;

(2) for charging units installed on or after March 1, 2025, a statement, affirmed by the provider that the charging unit was installed and operates in accordance with Occupations Code, Chapter 1305, and manufacturer specifications, and that the charging unit was in proper working order at the time of installation; and

(3) the fee required under §96.80.

(b) A certificate of registration is valid for one year from the date of issuance and must be renewed prior to its expiration.

(c) If a change in controlling provider takes place, the new provider must submit a new application for registration within 30 days of the change.

(d) A provider must report a change to its name, contact information, federal identification number, or social security number to the department within 30 days of the change. A change in the provider’s federal identification number or social security number constitutes a change of business identity and requires a new registration application under this section.

§96.22.Electric Vehicle Supply Equipment Registration Renewal Requirements.

(a) To renew registration of a charging unit of electric vehicle supply equipment, an electric vehicle supply provider must submit:

(1) a completed renewal application in a manner prescribed by the department; and

(2) the fee required under §96.80.

(b) A provider is responsible for renewing electric vehicle supply equipment registration before the expiration date. Lack of receipt of a renewal notice from the department shall not excuse failure to file for renewal or late renewal.

(c) If a provider adds additional charging units to a location after its previous registration but less than 90 days prior to that renewal, the provider will not be charged an additional fee for the newly installed charging units.

(d) A provider must include an accurate count of all active charging units with its submission of the renewal application and required fee to the department.

§96.23.Electric Vehicle Supply Equipment Registration Changes.

(a) If the number of registered charging units increases at an existing location, prior to operation of the added devices, the electric vehicle supply provider must submit:

(1) notice in a manner required by the department;

(3) the fee required under §96.80.

(b) If a provider removes or decommissions a charging unit or units at a location, the provider must provide notice in a manner prescribed by the department.

§96.24.Certificate of Registration.

An electric vehicle supply provider must make available a copy of the current certificate of registration to a member of the public upon request. The provider may refer the requestor to an electronic link to its digital network for a copy of the certificate of registration, or provide a copy of the certificate to the requestor’s email address or physical address, if the requestor has no electronic mail.

§96.30.Exemptions.

(a) The department may exempt an electric vehicle supply equipment provider from a requirement established by this chapter or the Code if it determines that imposing or enforcing the requirement:

(1) is not cost-effective for the department;

(2) is not feasible with current resources or standards; or

(3) will not substantially benefit or protect consumers.

(b) This chapter does not apply to electric vehicle supply equipment that is:

(1) installed in or adjacent to a private residence for noncommercial use;

(2) provided for the exclusive use of an individual, or a group of individuals, including employees, tenants, visitors, or residents of a multiunit housing or office development; or

(3) provided by a business for use at no charge.

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 November 8, 2024.

TRD-202405446

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER C. INSPECTIONS AND INVESTIGATIONS

16 TAC §96.60

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.60.EVSE Inspections and Investigations.

(a) The department, or its authorized representative, shall be permitted to inspect and test all non-exempt EVSE operating at any location in Texas in accordance with the Code, Texas Occupations Code, Chapter 51, the inspection, and investigation rules under 16 Texas Administrative Code, Chapter 60, Subchapter H, this chapter, and all applicable state and federal laws and regulations.

(b) The department will not begin conducting on-site inspections until March 1, 2026, except for investigations conducted in response to complaints filed with the department.

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 November 8, 2024.

TRD-202405447

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER D. RESPONSIBILITIES OF THE PROVIDER

16 TAC §§96.70 - 96.72, 96.74

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.70.Notification of Department Jurisdiction and Complaint Information.

(a) The electric vehicle supply provider must show a notice on the charging unit display or its digital network that the Texas Department of Licensing and Regulation regulates electric vehicle supply equipment.

(b) Consumers and providers must be notified by the provider of the name, e-mail address, website address, mailing address, and telephone number of the department for the purpose of directing complaints to the department regarding the Electric Vehicle Charging Program. The notification must appear on the charging unit's visual display or the provider's digital network.

(c) The notice described in subsection (b) must contain the following language: Unresolved complaints may be forwarded to the Texas Department of Licensing and Regulation, Electric Vehicle Charging Program, P.O. Box 12157, Austin, Texas 78711, or by telephone (512) 463-6599 or (800) 803-9202, TDD (800) 735-2989, or https://www.tdlr.texas.gov/complaints.

§96.71.Consumer Information Sticker.

(a) An electric vehicle supply provider must obtain a department issued consumer information sticker containing the department's contact information shown in §96.70(c) and place the sticker on the front of each charging unit operating at the provider's registered location.

(b) A consumer information sticker must not be placed in a manner that affects the accuracy, readability, or lawful operation of a device.

(c) If any part of the information on the sticker affixed to the charging unit is no longer fully legible and in plain sight of the consumer, the provider must replace the sticker within 60 days after the date the provider discovered the condition.

§96.72.Damaged Electric Vehicle Supply Equipment.

(a) Any damaged charging unit that poses a safety risk to the public must be removed from service by the electric vehicle supply provider in a manner:

(1) that prevents the use of the damaged charging unit by the public; and

(2) removes the damaged charging unit from the provider's digital network listing of available charging units.

(b) A provider is not required to physically relocate electric vehicle supply equipment from its current location while under repair.

§96.74.Recordkeeping Requirements.

(a) Each electric vehicle supply provider that owns or operates electrical vehicle supply equipment available and accessible to the public for electric vehicle commercial charging transactions must maintain and preserve all documents related to the installation, maintenance, inspection, and calibration of electric vehicle supply equipment for a period of three (3) years.

(b) All records applicable to this section must be provided to or made available for inspection or investigation to the department upon request in accordance with §96.60.

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 November 8, 2024.

TRD-202405448

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER E. FEES

16 TAC §96.80, §96.83

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.80.EVSE Registration Fees.

(a) Initial Registration for Newly Registered Charging Units and Additional Units - $30 per electric vehicle charging port.

(b) Renewal of Registration - $25 per electric vehicle charging port.

(d) A duplicate/replacement fee for any registration issued under this chapter is $25.

(e) All fees paid to the department are non-refundable.

(f) Late renewal fees for registration issued under this chapter are provided under 16 TAC §60.83 (relating to Late Renewal Fees).

(g) A dishonored/returned check or payment fee is the fee prescribed under 16 TAC §60.82 (relating to Dishonored Payment Device).

§96.83.Fee Policy and Disclosures.

(a) Disclosure Requirements. An electric vehicle supply provider must disclose the following on the EVSE display or on the provider's digital network:

(1) the fee calculation method or methods; and

(2) all applicable surcharges.

(b) Prior to charging, the provider must disclose the following to the user:

(1) the rate the user will be charged at the time of the transaction based on the available fee calculation method or methods; and

(2) a list of applicable surcharges.

(1) states that the department regulates electric vehicle supply equipment; and

(2) provides information on filing a complaint with the department about the electric vehicle supply equipment as described in §96.70.

(d) Receipts. Upon completion of the commercial transaction for electric vehicle charging, the provider must transmit a summary of the transaction to the user that includes the requirements of §2311.0304 and §2311.0305 of the Code, and the requirements contained in the most recent version of NIST Handbook 44, Section 3.40, and NIST Handbook 130, Section 2.34.

(e) This section takes effect on March 1, 2026, for charging units installed on or after March 1, 2025.

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 November 8, 2024.

TRD-202405449

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER F. ENFORCEMENT PROVISIONS

16 TAC §96.90, §96.91

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 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 November 8, 2024.

TRD-202405503

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

SUBCHAPTER G. GENERAL TECHNICAL REQUIREMENTS

16 TAC §96.100

STATUTORY AUTHORITY

The legislation that enacted the statutory authority under which the adopted rules are to be adopted is Senate Bills 1001 and 1732, 88th Legislature, Regular Session (2023).

§96.100.Adoption by Reference.

In accordance with the Code, the department adopts the requirements of the most recent version of the following publications and rules for the purpose of administering and enforcing this chapter:

(1) NIST Handbook 44, Section 3.40, "Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices."

(2) NIST Handbook 130, Section 2.34, "Uniform Laws and Regulations in the Areas of Legal Metrology and Fuel Quality."

(3) Chapter 6, Special Equipment, Article 625: Electric Vehicle Power Transfer System, National Electric Code.

(4) 16 Texas Administration Code, Chapter 68, Subchapter I; Texas Government Code, Chapter 469; Texas Accessibility Standards (eff 3.15.12).

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 November 8, 2024.

TRD-202405450

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 23, 2024

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

CHAPTER 130. PODIATRIC MEDICINE PROGRAM

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC) Chapter 130, Subchapter A, §130.1 and §130.2; Subchapter B, §§130.20, 130.23, 130.27, and 130.28; Subchapter C, §130.30 and §130.32; Subchapter D, §§130.40 - 130.42; Subchapter E, §§130.50, 130.51, 130.54, 130.55, 130.58, and 130.59; Subchapter F, §130.60; and Subchapter G, §§130.70, 130.72, and 130.73; adopts new rules at Subchapter B, §§130.21, 130.22, and 130.24; Subchapter C, §§130.31 and 130.34 - 130.36; and Subchapter D, §§130.43 - 130.48; and adopts the repeal of existing rules at Subchapter B, §§130.21, 130.22, and 130.24; Subchapter C, §130.31; Subchapter D, §§130.43 - 130.49; and Subchapter E, §130.52 and §130.53, regarding the Podiatric Medicine Program, without changes to the proposed text as published in the June 21, 2024, issue of the Texas Register (49 TexReg 4537). These rules will not be republished.

The Commission also adopts a new rule at 16 TAC Chapter 130, Subchapter C, §130.37; and amendments to an existing rule at Subchapter E, §130.57, regarding the Podiatric Medicine Program, with changes to the proposed text as published in the June 21, 2024, issue of the Texas Register (49 TexReg 4537). These rules will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 130, implement Texas Occupations Code, Chapter 202, Podiatrists; and Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Texas Department of Licensing and Regulation (Department). Specific provisions within this rule chapter also implement the statutory requirements under Texas Occupations Code, Chapters 53, 108, 112, 116, and 601.

Four-Year Rule Review

The adopted rules are necessary to implement changes recommended as a result of the required four-year rule review conducted under Texas Government Code §2001.039. The Department's Notice of Intent to Review 16 TAC Chapter 130, was published in the September 3, 2021, issue of the Texas Register (46 TexReg 5598). At its meeting on October 18, 2022, the Commission readopted the rule chapter in its entirety without changes. The readoption notice was published in the February 25, 2022, issue of the Texas Register (47 TexReg 988).

In response to the Notice of Intent to Review that was published, the Department received one public comment from one interested party regarding Chapter 130. The comment questioned whether there is a fee for an inactive status license. The comment has been addressed in the adopted rules by explaining that there is not a fee for an inactive license.

The adopted rules also include changes recommended by Department staff during the rule review process to reorganize and streamline the entire chapter. These changes include consolidating the existing rules; reorganizing provisions by subject matter; expanding existing Subchapter C to include multiple license types; eliminating duplicative provisions; and using plain talk language to improve clarity.

In addition, the adopted rules include changes recommended by the Education and Examination Workgroup of the Podiatric Medical Examiners Advisory Board to increase the number of training hours required for Podiatric Medical Radiological Technicians. The updated training requirements apply to persons who apply for the Podiatric Medical Radiological Technician (PMRT) registration on or after the effective date of the adopted rules. The training requirements are prerequisites to applying for the PMRT registration, and the updated training requirements apply prospectively. Persons who applied for or obtained the PMRT registration before the effective date of the adopted rules do not have to obtain additional training hours.

Changes in License Terms

The adopted rules also change the license terms for the Podiatric Medical Radiological Technician Registration, the Hyperbaric Oxygen Certificate, and the Nitrous Oxide/Oxygen Inhalation Conscious Sedation Registration. Beginning January 1, 2025, all three license types change from one-year to two-year terms, and the application and renewal fees have been updated to reflect this change. Existing licenses renewed by the Department will be valid for one year if renewed before January 1, 2025, or for two years if renewed on or after January 1, 2025.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The adopted rules amend §130.1, Authority and Applicability. The adopted rules change the name of the section from "Authority" to "Authority and Applicability." The adopted rules amend subsection (a) to identify other statutes that are implemented by the rules in Chapter 130. The adopted rules also add new subsection (b) to explain that the Chapters 60 and 100 rules also apply to the Podiatry program.

The adopted rules amend §130.2, Definitions. The adopted rules update the definition of "Podiatric Medical Radiological Technician" to clarify that the term includes a Podiatry X-ray Machine Operator. The adopted rules update the definition of "Practitioner" to clarify that the term is used interchangeably with "podiatrist" and "podiatric physician." The adopted rules also remove unnecessary language from the definition of "Act" and add clarifying language to the definition of "License."

Subchapter B. Advisory Board.

The adopted rules amend §130.20, Board Membership. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

The adopted rules repeal existing §130.21, Public Member Eligibility. This section is replaced with new §130.21, Public Member Eligibility.

The adopted rules add new §130.21, Public Member Eligibility. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

The adopted rules repeal existing §130.22, Membership and Employee Restrictions. This section is replaced with new §130.22, Membership and Employee Restrictions.

The adopted rules add new §130.22, Membership and Employee Restrictions. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

The adopted rules amend §130.23, Terms; Vacancies. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

The adopted rules repeal existing §130.24, Grounds for Removal. This section is replaced with new §130.24, Grounds for Removal.

The adopted rules add new §130.24, Grounds for Removal. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

The adopted rules amend §130.27, Advisory Board Meetings and Duties of Department. The adopted rules merge subsection (i) into subsection (g).

The adopted rules amend §130.28, Training. The adopted rules streamline this section by referring to the Occupations Code instead of repeating it verbatim.

Subchapter C. Temporary Residency and Other License Types.

The adopted rules amend Subchapter C, Temporary Residency and Other License Types. The adopted rules rename Subchapter C from "Temporary Residency" to "Temporary Residency and Other License Types," which now includes requirements for a Limited Faculty License, for a Podiatric Medical Radiological Technician Registration, for a Hyperbaric Oxygen Certificate, and for a Nitrous Oxide/Oxygen Inhalation Conscious Sedation Registration.

The adopted rules amend §130.30, Temporary Residency License--General Requirements and Application. The adopted rules remove the word "successfully" and replace the word "shall" with "must."

The adopted rules repeal existing §130.31, Temporary Residency License--Residency Requirements; Program Responsibilities; License Term. This section is replaced with new §130.31, Temporary Residency License--License Term; Residency Requirements; Program Responsibilities.

The adopted rules add new §130.31, Temporary Residency License--License Term; Residency Requirements; Program Responsibilities. The adopted rules rename the section from "Temporary Residency License--Residency Requirements; Program Responsibilities; License Term" to "Temporary Residency License--License Term; Residency Requirements; Program Responsibilities." The adopted rules rearrange the order of the section to increase readability.

The adopted rules amend §130.32, Temporary Residency License--Final Year of Residency. The adopted rules streamline the section to increase readability, rearrange the order of the section, and establish requirements a resident must follow in their final year of residency.

The adopted rules add new §130.34, Limited Faculty License--Requirements; License Term. The adopted rules create a standalone section for a limited faculty license by relocating existing §130.40(b) and §130.42(d) to this section. The adopted rules explain the requirements for procuring a limited faculty license and establish that the term of this license is up to two years. The adopted rules also establish when a limited faculty license will be terminated, and that termination does not preclude a podiatrist from applying for or holding another license type issued under this subchapter.

The adopted rules add new §130.35, Podiatric Medical Radiological Technicians. The adopted rules relocate existing §130.53 to this section and increase the number of required training hours from 20 hours to 45 hours for podiatric medical radiological technicians. The adopted rules update the didactic and clinical training requirements; increase the number of x-rays to be performed; and reflect the actual time needed to complete the training requirements. The updated training requirements apply to persons who apply for the Podiatric Medical Radiological Technician (PMRT) registration on or after the effective date of the adopted rules. The training requirements are prerequisites to applying for the PMRT registration, and the updated training requirements apply prospectively. Persons who applied for or obtained the PMRT registration before the effective date of the adopted rules do not have to obtain additional training hours.

The adopted rules under new §130.35 also change the length of the registration term from one year to two years. A registration is valid for one year if the registration was issued before January 1, 2025, or two years if the registration was issued on or after January 1, 2025. Similarly, the adopted rules establish that a registration renewed by the department is valid for one year if the renewal was issued before January 1, 2025, and must be renewed annually, or two years if the renewal was issued on or after January 1, 2025, and must be renewed every two years. The adopted rules explain the process for completing a renewal application, establish that human trafficking prevention training is required for each renewal, and explain when the department may refuse to issue or renew a registration.

The adopted rules add new §130.36, Hyperbaric Oxygen Certificate--Application Requirements and Guidelines. The adopted rules relocate existing §130.47 to this section and change the length of the certificate term from one year to two years. A certificate is valid for one year if the certificate was issued before January 1, 2025, or two years if the certificate was issued on or after January 1, 2025. Similarly, the adopted rules establish that a certificate renewed by the Department is valid for one year if the renewal was issued before January 1, 2025, and must be renewed annually, or two years if the renewal was issued on or after January 1, 2025, and must be renewed every two years.

The adopted rules add new §130.37, Nitrous Oxide/Oxygen Inhalation Conscious Sedation-Registration Requirements, Guidelines, and Direct Supervision. The adopted rules relocate existing §130.48 to this section and change the length of the certificate term from one year to two years. A registration is valid for one year if the registration was issued before January 1, 2025, or two years if the registration was issued on or after January 1, 2025. Similarly, the adopted rules establish that a registration renewed by the Department is valid for one year if the renewal was issued before January 1, 2025, and must be renewed annually, or two years if the renewal was issued on or after January 1, 2025, and must be renewed every two years. In response to a public comment, the adopted rules add the Health and Safety Institute as a sponsor of a basic and advanced CPR program that can be utilized by a practitioner. The Health and Safety Institute is a recognized sponsor in addition to the American Heart Association and the American Red Cross. All three entities are listed in the adopted rules.

Subchapter D. Doctor of Podiatric Medicine.

The adopted rules amend §130.40, Doctor of Podiatric Medicine License--General Requirements and Application; Limited Faculty License. The adopted rules change the name of the section from "Doctor of Podiatric Medicine License--General Requirements and Applications; Limited Faculty License" to "Doctor of Podiatric Medicine License--General Requirements and Application." The adopted rules relocate the limited faculty license language to new §130.34 and streamline the remaining language to make it easier to read.

The adopted rules amend §130.41, Doctor of Podiatric Medicine License--Jurisprudence Exam. The adopted rules replace the word "shall" with "must."

The adopted rules amend §130.42, Doctor of Podiatric Medicine License--Term; Renewal. The adopted rules remove language relating to a limited faculty license and relocate it to new §130.34. The adopted rules also remove outdated language and add clarifying language.

The adopted rules repeal existing §130.43, Doctor of Podiatric Medicine License--Provisional License. This section is replaced with new §130.43, Doctor of Podiatric Medicine License--Provisional License.

The adopted rules add new §130.43, Doctor of Podiatric Medicine License--Provisional License. The adopted rules remove duplicative language located elsewhere in the chapter and streamline the remaining language to make it easier to read.

The adopted rules repeal existing §130.44, Continuing Medical Education--General Requirements. This section is replaced with new §130.44, Continuing Medical Education--General Requirements.

The adopted rules add new §130.44, Continuing Medical Education--General Requirements. The adopted rules streamline the section and relocate the continuing medical education audit process to new §130.45.

The adopted rules repeal §130.45, Continuing Medical Education--Exceptions and Allowances; Approval of Hours. The adopted rules relocate the repealed provisions to new §130.46.

The adopted rules add new §130.45, Continuing Medical Education--Audit Process. The adopted rules relocate audit information from current §130.44 and establish that the Department will select random license holders to ensure compliance with CME hours.

The adopted rules repeal §130.46, Inactive Status. The adopted rules relocate the repealed provisions to new §130.47.

The adopted rules add new §130.46, Continuing Medical Education--Exceptions and Allowances; Approval of Hours. The adopted rules relocate the requirements of existing §130.45 to this new section.

The adopted rules repeal §130.47, Hyperbaric Oxygen Certificate--Application Requirements and Guidelines. The adopted rules relocate the repealed provisions to new §130.36.

The adopted rules add new §130.47, Inactive Status. The adopted rules relocate the requirements of existing §130.46 to this new section and establish that a practitioner may place a license on inactive status at no cost.

The adopted rules repeal §130.48, Nitrous Oxide/Oxygen Inhalation Conscious Sedation--Registration Requirements, Guidelines, and Direct Supervision. The adopted rules relocate the repealed provisions to new §130.37.

The adopted rules add new §130.48, Voluntary Charity Care Status. The adopted rules relocate the requirements of existing §130.49 to this new section.

The adopted rules repeal §130.49, Voluntary Charity Care Status. The adopted rules relocate the repealed provisions to new §130.48.

Subchapter E. Practitioner Responsibilities and Code of Ethics.

The adopted rules amend §130.50, Practitioner Identification; Professional Corporations or Associations. The adopted rules remove redundant and unnecessary language regarding the purpose of this section and streamline the rest of the section to make it easier to read.

The adopted rules amend §130.51, Advertising. The adopted rules streamline the section and remove language relating to certifying boards that are not recognized by the Council of Podiatric Medical Education of the American Podiatric Medical Association.

The adopted rules repeal §130.52, Medical Offices, because the Department does not regulate medical offices, but individual licensees.

The adopted rules repeal §130.53, Podiatric Medical Radiological Technicians. The adopted rules relocate the repealed provisions to new §130.35.

The adopted rules amend §130.54, Records. The adopted rules streamline the section to make it easier to read.

The adopted rules amend §130.55, Practitioner Code of Ethics. The adopted rules add new subsection (g) to establish that treatment must be consistent with best practices and standards observed in the podiatry community.

The adopted rules amend §130.57, Sexual Misconduct. The adopted rules streamline the section to make it easier to read. In response to a public comment, the adopted rules update the references in this section to use the terminology "podiatric physician" or "practitioner."

The adopted rules amend §130.58, Standards for Prescribing Controlled Substances and Dangerous Drugs. The adopted rules streamline the section to make it easier to read.

The adopted rules amend §130.59, Opioid Prescription Limits and Required Electronic Prescribing. The adopted rules streamline the section to make it easier to read.

Subchapter F. Fees.

The adopted rules amend §130.60, Fees. The adopted rules update the fees for the hyperbaric oxygen certificate, the nitrous oxide registration, and the podiatric medical radiological technician registration, because the certificate and registration terms are changed from one year to two years. The fees are $25 if the certificate or registration is issued or renewed before January 1, 2025, or $50 if the certificate or registration is issued or renewed on or after January 1, 2025. The adopted rules add a $0 fee for an Inactive Status License (Initial and Renewal). The adopted rules also make clean-up changes to the cross-referenced fees under Chapter 60.

Subchapter G. Enforcement.

The adopted rules amend §130.70, Complaints and Claims. The adopted rules replace the word "shall" with "must" and streamline the section to make it easier to read.

The adopted rules amend §130.72, Administrative Penalties and Sanctions. The adopted rules clarify that a person or entity who violates or attempts to violate the Occupations Code, this chapter, or any rule of the commission may face proceedings against them.

The adopted rules amend §130.73, Conditions of Suspension of License. The adopted rules streamline the section to make it easier to read.

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 June 21, 2024, issue of the Texas Register (49 TexReg 4537). The public comment period closed on July 22, 2024. The Department received comments from one interested party in response to the required summary of the proposed rules, which was posted on the Department's website and distributed on June 10, 2024, before the official publication of the proposed rules and the official start of the public comment period. The Department received comments from two interested parties on the published proposed rules during the official public comment period. The public comments are summarized below.

Comments in Response to the Posted Summary

Comment: One interested party submitted a comment in response to the posted summary of the proposed rules, not the published proposed rules. The interested party disagreed with the increase in the number of training hours for Podiatric Medical Radiological Technicians and stated that the additional training does not seem to be warranted.

Department Response: The Department disagrees with this comment. The proposed rules under §130.35 increase the number of training hours from 20 hours to 45 hours for the Podiatric Medical Radiological Technicians, as recommended by the Education and Examination Workgroup of the Podiatric Medical Examiners Advisory Board. This change is necessary as a result of moving to an online course; expanding the clinical training requirements; expanding the online course and student manual to add digital content as the profession shifts from film to digital x-rays; and increasing the number of x-rays performed in a clinical setting from 60 x-rays to 90 x-rays. The change in the number of training hours also reflects the actual time needed to complete these requirements and ensures that students receive credit for the hours they complete. The Podiatric Medical Examiners Advisory Board agreed that the proposed changes are necessary. The Department did not make any changes to the proposed rules as a result of this comment.

Comments in Response to the Published Proposed Rules

Comment: The Health and Safety Institute (HSI) submitted a comment on proposed rule §130.37 and requested that its organization be added as a sponsor of a basic and advanced CPR program that can be utilized by a practitioner. The proposed rules only list the American Heart Association and the American Red Cross as sponsors. HSI provided information on why it should be included in the proposed rules as a third sponsor, including: (1) HSI, along with the American Red Cross (ARC) and American Heart Association (AHA), are the largest providers of CPR training in the United States; (2) HSI's training programs are equivalent to those of ARC and AHA; (3) HSI, like ARC and AHA, is nationally accredited by the Commission on Accreditation of Pre-Hospital Continuing Education (CAPCE); (4) HSI's resuscitation training programs are currently in use by, and accepted, approved, or recognized by, thousands of employers, state agencies, licensing boards, professional associations, and other organizations nationwide; and (5) the training business units of HSI, AHA, and ARC are similar. HSI commented that similarly situated resuscitation training programs should be treated the same and that including HSI will encourage competition while protecting the public health and safety.

Department Response: The Department agrees with this comment. This comment was reviewed by the Standard of Care Workgroup of the Podiatric Medical Examiners Advisory Board. The workgroup found the Health and Safety Institute (HSI) training to be equivalent to the CPR training of the American Heart Association and the American Red Cross. The workgroup had no objection to HSI being added as another CPR sponsor in the rules. The Department made changes to §130.37 to include the Health and Safety Institute as a result of this comment.

Comment: The Texas Medical Association (TMA) submitted a comment on the proposed rules addressing three issues. First, TMA requested to amend the proposed rules by reinserting the language under §130.50(c), regarding the purpose of the professional designations, which was removed. Second, TMA strongly recommended that the podiatry rules under §130.50(a) and (b) be amended to only include the identifiers listed for podiatrists under the Healing Art Identification Act, Texas Occupations Code, Chapter 104. Third, TMA strongly recommended that references to podiatrists as "physicians" be removed from the rules under Chapter 130.

Department Response: The Department agrees with part of this comment but disagrees with other parts of the comment.

In response to the comment about reinserting the deleted language under §130.50(c), regarding the purpose of the section and a professional designation, the Department with the advice of the Podiatric Medical Examiners Advisory Board disagrees with the comment. The provision under former subsection (c) was removed from the proposed rules, since it is redundant with the existing provisions under subsections (a) and (b). These two subsections address the specific professional identifiers and professional designations that must be used by the practitioner. It is unnecessary to reinsert former subsection (c) into the proposed rules. The Department declined to make changes to §130.50 in response to this comment.

In response to the comment that any professional identifications that are not listed in the Healing Art Identification Act should be removed from the podiatry rules, the Department declines to make those changes at this time. Removing professional identifications used by podiatrists at this stage of the rulemaking process is a substantive and significant change that would require notice and opportunity for public comment and is beyond the scope of this rulemaking. The Department recommended that this part of the comment be referred to an advisory board workgroup for further review, research, and consideration about whether this type of change should be undertaken in a future rulemaking. The Department did not make any changes to the proposed rules in response to this comment.

In response to the comment about the use of the word "physician" in the proposed rules, the terms "podiatrist," "podiatric physician," and "practitioner" are used interchangeably in the proposed rules, as explained in the definition of "practitioner" under §130.2, Definitions. To the extent there are references to "physician" only, the Department agrees that the references in the rules should be to "podiatric physician." The Department made changes to §130.57 to update the references and to use the terminology "podiatric physician" or "practitioner" in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Podiatric Medical Examiners Advisory Board met on August 19, 2024, 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 with changes to §130.37 and §130.57 made in response to the public comments, as explained in the Section-by-Section Summary.

At its meeting on October 23, 2024, the Commission adopted the proposed rules with changes as recommended by the Advisory Board. In response to questions from the Commission regarding the updated training requirements for the Podiatric Medical Radiological Technician registration, the Department has added clarifying language in the Explanation and Justification section and in the Section-by-Section Summary under new §130.35 regarding the applicability of the updated training requirements. No changes were made to the adopted rule text under new §130.35.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §130.1, §130.2

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapters 51 and 202, 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, 53, 108, 112, 116, 202, and 601. 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 November 8, 2024.

TRD-202405431

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER B. ADVISORY BOARD

16 TAC §§130.20 - 130.24, 130.27, 130.28

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405432

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

16 TAC §§130.21, 130.22, 130.24

STATUTORY AUTHORITY

The adopted repeals are adopted under Texas Occupations Code, Chapters 51 and 202, 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 repeals are those set forth in Texas Occupations Code, Chapters 51, 53, 108, 112, 116, 202, and 601. No other statutes, articles, or codes are affected by the adopted repeals.

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 November 8, 2024.

TRD-202405439

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER C. TEMPORARY RESIDENCY AND OTHER LICENSE TYPES

16 TAC §§130.30 - 130.32, 130.34 - 130.37

STATUTORY AUTHORITY

§130.37.Nitrous Oxide/Oxygen Inhalation Conscious Sedation--Registration Requirements, Guidelines, and Direct Supervision.

(a) As used in this section, conscious sedation means the production of an altered level of consciousness in a patient by pharmacological or non-pharmacological methods.

(b) Conscious sedation of a patient by nitrous oxide is the administration by inhalation of a combination of nitrous oxide and oxygen producing a minimally depressed level of consciousness while retaining the patient's ability to maintain a patent airway independently and continuously, and to respond appropriately to physical stimulation and verbal command.

(c) Conscious sedation of a patient by nitrous oxide must be induced, maintained, and continuously supervised only by the practitioner or by the assistant under continuous direct supervision of the practitioner. The nitrous oxide must not be flowing if the practitioner is not present in the room.

(d) To use nitrous oxide/oxygen inhalation conscious sedation on a patient for podiatric medical purposes in the State of Texas, the practitioner must first register with the department and provide the following:

(1) proof that the practitioner has completed a didactic and clinical course which includes aspects of monitoring patients and the hands-on use of the gas machine. The didactic and clinical course must:

(A) be directed by a licensed and certified M.D., D.O., D.D.S., or D.P.M., in the State of Texas with advanced educational and clinical experience with routine administration of nitrous oxide/oxygen inhalation conscious sedation;

(B) include a minimum of four hours didactic work in pharmacodynamics of nitrous oxide/oxygen inhalation conscious sedation; and

(2) proof that the practitioner has completed a CME course in nitrous oxide/oxygen inhalation conscious sedation that includes training in the prevention and management of emergencies in the podiatric medical practice; and

(3) proof that the practitioner has completed a basic and advanced CPR program sponsored by the American Heart Association, the American Red Cross, or the Health and Safety Institute. Proof of current certification is the responsibility of the podiatric physician. Additionally, the D.P.M. must provide documented training or emergency procedures to office personnel.

(e) The department may, at any time and without prior notification, require an on-site office evaluation to determine that all standards regarding nitrous oxide/oxygen inhalation conscious sedation are being met.

(f) Registration Term and Renewal. A registration is valid for one or two years.

(1) A registration is valid for one year if the registration was issued before January 1, 2025, or two years if the registration was issued on or after January 1, 2025.

(2) A registration renewed by the department is valid for one year if the registration was renewed before January 1, 2025, and must be renewed annually, or two years if the registration was renewed on or after January 1, 2025, and must be renewed every two years. A registration renewal is completed by submitting a registration renewal application in a form and manner prescribed by the department and paying the required fee under §130.60.

(3) A registration will not be renewed if a current certificate of inspection of the gas machine is not filed with the department.

(g) A registrant must inform the department within 10 business days of any address change.

(h) When a registration is issued, it must be clearly displayed in the office.

(i) All office personnel who assist the practitioner in the nitrous oxide/oxygen inhalation conscious sedation procedure must:

(1) be trained in basic life support;

(2) have annual reviews of emergency protocols, contents, and use of emergency equipment; and

(3) have annual reviews of basic CPR.

(j) Documentation verifying these annual reviews must be maintained in the office of the practitioner who employs the personnel and must be provided to the department if requested.

(k) The practitioner must evaluate and document in the patient's medical record, prior to the nitrous oxide/oxygen inhalation conscious sedation procedure, the patient's health and medical status to ensure that nitrous oxide/oxygen inhalation conscious sedation is medically appropriate.

(l) Equipment used must meet the following safety criteria: The gas machine must have:

(1) 30% minimum oxygen flow;

(2) Glass flow tubes;

(3) Nitrous oxide fail-safe (will not flow without oxygen);

(4) Automatic room air intake in the event the bag is empty;

(5) Non-rebreathing check valve;

(6) Oxygen flush; and

(7) Auxiliary oxygen outlet with one demand valve resuscitation assembly per office.

(m) All practitioners administering nitrous oxide must have:

(1) a functioning vacuum system;

(2) a scavenger system;

(3) appropriate emergency drugs and equipment for resuscitation;

(4) a manifold to provide for protection against overpressure. The manifold must be equipped with an audible alarm system. The machine must have a service check on a three-year basis, a copy of which must be filed with the department; and

(5) a method of locking the nitrous oxide tanks after business hours.

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 November 8, 2024.

TRD-202405433

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER C. TEMPORARY RESIDENCY

16 TAC §130.31

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405440

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER D. DOCTOR OF PODIATRIC MEDICINE

16 TAC §§130.40 - 130.48

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405435

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

16 TAC §§130.43 - 130.49

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405441

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER E. PRACTITIONER RESPONSIBILITIES AND CODE OF ETHICS

16 TAC §§130.50, 130.51, 130.54, 130.55, 130.57 - 130.59

STATUTORY AUTHORITY

§130.57.Sexual Misconduct.

(a) Sexual misconduct is behavior that exploits the podiatric physician-patient or podiatric physician-staff member relationship in a sexual way. This behavior is non-diagnostic and non-therapeutic, may be verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual or that reasonably may be construed by a person as sexual.

(b) Sexual misconduct may be the basis for disciplinary action if the behavior was injurious or there is an exploitation of the podiatric physician-patient or podiatric physician-staff member relationship.

(c) Sexual violation may include podiatric physician-patient or podiatric physician-staff member sex, whether or not initiated by the patient/staff, and engaging in any conduct with a patient/staff that is sexual or may be reasonably interpreted as sexual, including but not limited to:

(1) sexual intercourse, genital-to-genital contact;

(2) oral to genital contact;

(3) oral to anal contact, genital to anal contact;

(4) kissing in a romantic or sexual manner;

(5) touching breasts, genitals, or any sexualized body part for any purpose other than appropriate examination or treatment, or where the patient/staff has refused or has withdrawn consent;

(6) encouraging the patient/staff to masturbate in the presence of the podiatric physician or masturbation by the podiatric physician while the patient/staff is present; and

(7) offering to provide practice-related services, such as drugs, in exchange for sexual favors.

(d) Sexual impropriety may comprise behavior, gestures, or expressions that are seductive, sexually suggestive, or sexually demeaning to a patient/staff, including but not limited to:

(1) disrobing or draping practices that reflect a lack of respect for the patient's/staff's privacy, deliberately watching a patient/staff dress or undress, instead of providing privacy for disrobing;

(2) subjecting a patient/staff to an intimate examination in the presence of medical students or other parties without the explicit consent of the patient/staff or when consent has been withdrawn;

(3) examination or touching of genitals without the use of gloves;

(4) inappropriate comments about or to the patient/staff, including but not limited to:

(A) making sexual comments about a person's body or underclothing;

(B) making sexualized or sexually demeaning comments to a patient/staff;

(D) making comments about potential sexual performance during an examination or consultation, except when the examination or consultation is pertinent to the issue of sexual function or disfunction;

(E) requesting details of sexual history, sexual likes, or sexual dislikes when not clinically indicated for the type of consultation;

(5) engaging in treatment or examination of a patient/staff for other than bona fide health care purposes or in a manner substantially inconsistent with reasonable health care practices;

(6) using the podiatric physician-patient or podiatric physician-staff member relationship under the pretext of treatment to solicit a date;

(7) initiation by the podiatric physician of conversation regarding the sexual problems, preferences, or fantasies of the podiatric physician; and

(8) examining the patient/staff intimately withoutconsent.

(e) Sexual exploitation by a practitioner is the breakdown of the professionalism in the podiatric physician/patient/staff relationship constituting sexual abuse. Sexual exploitation may undermine the therapeutic relationship, may exploit the vulnerability of the patient/staff, and ultimately may be detrimental to the patient's/staff's emotional well-being, including but not limited to:

(1) causing emotional dependency of the patient/staff;

(2) causing unnecessary dependence outside the therapeutic relationship;

(3) breach of trust; and

(4) imposing coercive power over the patient/staff.

(f) A third impartial person who is the same sex as the patient must be present in the examining room if a patient is asked to disrobe or if the genitalia are examined.

(g) The practitioner under investigation for sexual misconduct may be required to have a complete medical evaluation, including appropriate mental and physical examination. Laboratory examination should include appropriate urine and blood drug screens.

(h) The psychiatric history and mental status examination is to be performed by a psychiatrist knowledgeable in the evaluation suspected of sexual misconduct. The examination may include neuropsychological testing.

(i) Sexual violation or impropriety may warrant disciplinary action by the department up to and including revocation of license.

(j) In the event a podiatric physician applies for license reinstatement, any petition for reinstatement will include the stipulation that additional mental and physical evaluations may be required prior to the department's review for reinstatement to ensure the continuing protection of the public.

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 November 8, 2024.

TRD-202405436

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

16 TAC §130.52, §130.53

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405443

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER F. FEES

16 TAC §130.60

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405437

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

SUBCHAPTER G. ENFORCEMENT

16 TAC §§130.70, 130.72, 130.73

STATUTORY AUTHORITY

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 November 8, 2024.

TRD-202405438

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: June 21, 2024

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

CHAPTER 131. PROCEDURAL RULES DURING TEMPORARY ADMINISTRATION OF THE TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS

16 TAC §§131.1, 131.11, 131.21, 131.23, 131.25, 131.27, 131.29

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 131, §§131.1, 131.11, 131.21, 131.23, 131.25, and 131.27, regarding the Procedural Rules During Temporary Administration of the Texas Board of Veterinary Medical Examiners, without changes to the proposed text as published in the August 30, 2024, issue of the Texas Register (49 TexReg 6692). These rules will not be republished.

The Commission also adopts a new rule at 16 TAC Chapter 131, §131.29, regarding the Procedural Rules During Temporary Administration of the Texas Board of Veterinary Medical Examiners, with changes to the proposed text as published in the August 30, 2024, issue of the Texas Register (49 TexReg 6692). This rule will be republished.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules under 16 TAC, Chapter 131, will implement Texas Occupations Code, Chapter 801, Veterinarians, Subchapter A-1, Temporary Administration by the Texas Department of Licensing and Regulation.

On September 1, 2023, the Texas Board of Veterinary Medical Examiners (Board) was brought under the temporary administration of the Department by Senate Bill (SB) 1414, 88th Legislature, Regular Session (2023). As a result of SB 1414, the Texas Commission of Licensing and Regulation (Commission) now serves as the decision-maker in contested cases under Occupations Code, Chapter 801 (Veterinary Licensing Act or "the Act."). Occupations Code §801.022(a) and (b) vest the Department, during temporary administration, with most of the Board's former policymaking and decision-making authority under the Act, with the Board retaining rulemaking authority over standard of care and scope of practice matters, subject to limited oversight, under §801.024. Occupations Code §801.022(c) gives the Commission and Department discretion to delegate powers to the Board or its executive director, and to withdraw these delegations of power. Under Occupations Code §801.022(d), the Commission is required to adopt rules necessary to implement the temporary administration of the Board. Occupations Code §801.025 provides that in the event of a conflict between Occupations Code, Chapters 51 and 801, the latter prevails, and that the provisions of Subchapter A-1 prevail over the remainder of Chapter 801.

Prior to the effective date of SB 1414, contested cases under the Act were decided by the Board, applying the Act and the Board's procedural rules found in 22 TAC, Chapter 575, which implement the Act. Similarly, contested cases before the Commission are decided under the procedural rules at 16 TAC, Chapter 60, which implement Occupations Code, Chapter 51, the Department's enabling statute. Key differences exist between the Chapter 60 and Chapter 575 rules, introducing the possibility of confusion in conduct of contested veterinary licensing cases during the temporary administration. The adopted rules address these issues by resolving conflicts between the Chapter 60 and Chapter 575 rules as necessary to effect the temporary administration, while preserving the statutory rights of license holders and the statutory hierarchy set forth in Occupations Code §801.025.

The adopted rules clarify that unless the Commission delegates its authority to make decisions in contested cases under the Veterinary Licensing Act, the Commission will serve as the decision-maker in these matters. The Commission may delegate this authority to its own executive director, the Board, or the Board's executive director. Further, the adopted rules provide detail regarding the Board's, Department's, and Commission's roles in the contested case process, and the procedures to be followed if the Commission does not delegate its decision-making power. Further, the adopted rules address conflicts between the Board's existing rules and the Commission's rules relating to interim and interlocutory appeals, as well as deadlines for exceptions and replies in cases before the State Office of Administrative Hearings.

SECTION-BY-SECTION SUMMARY

The adopted rules add new 16 TAC, Chapter 131, Procedural Rules During Temporary Administration of the Texas Board of Veterinary Medical Examiners.

The adopted rules add new §131.1, Authority and Applicability. Subsection (a) sets forth the legal authority for the rule chapter. Subsection (b) sets forth the circumstances under which the rules apply. Subsection (c) sets forth a framework for resolving any conflicts between this chapter, the Chapter 60 rules, and the Chapter 575 rules, as enumerated in paragraphs (1) - (3).

The adopted rules add new §131.11, Definitions. Subsection (a) incorporates by reference the definitions in the Act, the APA, and in 16 TAC §60.10. Subsection (b) provides specific definitions in paragraph (1) - (9) for certain key terms, doing so for clarity and ease of reference.

The adopted rules add new §131.21, Contested Case Proceedings at SOAH. The rule mirrors language in 16 TAC §60.305(a) and clarifies that the period for exceptions and replies is determined under the APA and SOAH's procedural rules, rather than under 22 TAC §575.6.

The adopted rules add new §131.23, Interlocutory or Interim Appeals. The rule clarifies that, notwithstanding the rule at 22 TAC §575.30(f), which purports to permit interlocutory or interim appeals, such a proceeding is not available during the temporary administration.

The adopted rules add new §131.25, Commission and Board Consideration of Proposals for Decision. The rule clarifies that the Board acts in an advisory capacity and that the Commission is the decision-maker following the issuance of a proposal for decision. Subsection (a) sets forth the Commission's status as decision-maker and its authority to delegate this power to the Board on a revocable basis, as provided in Occupations Code §801.022(c). Subsection (b) provides that the Board is to consider the proposal for decision at an open meeting in accordance with its procedural rules, is to make a written recommendation to the Commission, and will notify the parties of its recommendation by mail or email. Subsection (b) provides that no motion for rehearing or reconsideration is to be filed at the Board level. Subsection (c) outlines the procedures for Commission consideration of the Board's recommendation. Subsection (d) addresses the content of oral argument, where permitted, and prohibits the consideration of new evidence presented during oral arguments, tracking certain language from 16 TAC §60.308(b). Subsection (e) provides the factors that will be considered by the Commission in determining the appropriate disciplinary action for a violation.

The adopted rules add new §131.27, Motions for Rehearing. The rule tracks the language of 16 TAC §60.309, clarifying that the Commission's procedures for motions for rehearing apply to cases under the Act.

The adopted rules add new §131.29, Proceedings for the Modification or Termination of Agreed Orders and Disciplinary Orders. The rule clarifies that the Commission is the decision-maker over proceedings to modify or terminate a previously imposed sanction. The text of the heading is corrected from the proposed version to correct a typographical error. Subsection (a) clarifies that the rule does not create a new right to relief. Subsection (b) provides that the Commission is the decision-maker unless this power is delegated, and that the terms of a delegation order override any conflicting provision in this rule section. Subsection (c) provides that the Board is to consider and make recommendations on motions to modify or terminate a sanction. Subsection (d) provides that the Commission will rule on the motion after considering the Board's recommendation.

PUBLIC COMMENTS

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code §801.022, which authorizes the Texas Commission of Licensing and Regulation (Commission), the Department's governing body, to adopt rules as necessary to effect the Department's temporary administration of the board in accordance with Occupations Code, Chapter 801, subchapter A-1.

The adopted rules are also adopted under Texas Occupations Code, Chapter 51, which authorize the Commission 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 801. No other statutes, articles, or codes are affected by the adopted rules.

The legislation that enacted the statutory authority under which the proposed rules are adopted is Senate Bill 1414, 88th Legislature, Regular Session (2023).

§131.29.Proceedings for the Modification or Termination of Agreed Orders and Disciplinary Orders.

(a) No new right to relief created. This section governs proceedings to modify or terminate agreed orders and disciplinary orders where a right to seek such relief exists under current law and does not create a new right to such relief.

(b) Commission as decision-maker. The commission may delegate to the board or the executive director of the department the authority to rule upon motions to modify or terminate agreed orders or disciplinary orders. Such delegation is revocable. Unless so delegated, the commission will rule upon all such motions. Should the commission delegate this authority, the terms of the delegation will override any conflicting provision in this section.

(c) Board to issue recommendation. The board will receive and consider motions to modify or terminate agreed orders or disciplinary orders in accordance with the Veterinary Licensing Act and the board's procedural rules. Following board deliberation of the motion, the board will make a written recommendation to the commission on the resolution of the case and notify the parties or their representatives of its recommendation by postal or electronic mail.

(d) Following the issuance of the board's recommendation, the commission will rule upon the motion.

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 November 8, 2024.

TRD-202405427

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Effective date: December 1, 2024

Proposal publication date: August 30, 2024

For further information, please call: (512) 463-3671