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Texas Register Preamble


Texas Department of Licensing and Regulation proposes the repeal of §75.25 and amendments to §§75.1, 75.10, 75.20-75.24, 75.26, 75.30, 75.40, 75.65, 75.70, 75.80, 75.90, and 75.100 concerning air conditioning and refrigeration contractors. The proposed repeal and amendments rearrange, consolidate, and revise existing language for clarification.

The proposed amendment to §75.10 deletes a part of the definition of "Advertising or Advertisement", which is covered in the rule on Advertising; adds language to describe how "Biomedical Remediation" is accomplished; adds a definition of "Design of a system"; and clarifies the definition of "Repair work".

The justification for the proposed amendment to §75.10 is to provide clarification to industry and promote understanding of the terms used in this Chapter.

The proposed amendment to §75.20(a) deletes the 45-day requirement on receipt of an application prior to an examination date and specifies all licensing requirements must be completed within one year of the date the application is filed. The justification for the amendments to §75.20(a) is that 45 days is no longer necessary to process applications for exams, since exams are now computer-based and a time limit on completing the licensing process simplifies procedures and facilitates timely enforcement actions. The proposed amendment to §75.20(b) deletes, "who wishes to use", and adds, "uses", to provide clarification to the subsection.

The proposed amendments to §75.21 delete requirements for passage and rescheduling of an examination; clarify that an examination accommodation may be requested by an applicant; provide that applicants who do not show for exams forfeit the exam fee; and impose license sanctions and/or administrative penalties for cheating on an exam. The justification for amendments to §75.21 is that time constraints are no longer necessary for handling computer-based exams; that an accommodation based on disability will be made to those applicants that request it in order to provide full access to the examination; and that forfeiting the exam fee will reduce no-shows and allow the Department to recover examination costs.

The amendments proposed to §75.22 provide that a license is not transferable; make the wallet card the actual license; list the information to be shown on the license; provide that wall certificates will be issued to new licensees; require that air conditioning and refrigeration contracting companies request removal of the company name from the Department's records within ten business days when a licensee whose license is affiliated with the company leaves their employ; and require that any person or air conditioning and refrigeration contracting company meet standards for proper installation, service, and mechanical integrity, and ethical business practices. The justification for the amendments to § 75.22 is that the wallet card license, containing all pertinent license information, will be the recognized license and will be carried by the licensee and presented to consumers, municipal officials, suppliers and others, providing better and instantaneous license information. A non-transferable air conditioning license allows the Department to better track the licensee and prevents confusion among consumers and municipalities. The justification for requiring air conditioning and refrigeration contracting companies to notify the Department when an affiliated licensee leaves their employ is that this information is necessary to assign responsibility to the proper licensee when consumer complaints are received. The justification for requiring that any person or air conditioning and refrigeration contracting company meet standards is to clarify the Department's authority to impose administrative penalties and/or sanctions against licensed and unlicensed contractors that violate those standards.

The amendments proposed to §75.23 require that the applicant for a temporary license be an owner, partner or employee already associated with the firm; require that the application be filed within ten business days after the license became unavailable; and revise the time a temporary license is valid from six months to 30 days from date of issuance. The justification for the amendments to §75.23 is to clarify who may qualify for a temporary license; to protect the consumer by allowing work to go forward with minimal disruption; and to retain the temporary status of such a license by lowering its validity to 30 days.

The proposed amendments to §75.24 allow for license renewal up to six months after expiration; list the $50 late fee for late renewals; and remove the requirement that certificates of insurance expire more than 30 days after renewal. The justification for the amendments to §75.24 is to simplify the renewal process by allowing the Department to better process renewals received up to six months after date of expiration, and to facilitate renewals by not requiring early insurance renewals.

The proposed amendment to §75.26 adds a statement that obtaining a Certificate of Registration by fraud or false representation is grounds for an administrative sanction or penalty. The justification for the amendment to §75.26 is to prevent a person from using fraud or false representation as a basis to obtain a Certificate of Registration.

The proposed amendment to §75.30 deletes the requirement that, to qualify for exemption, an employee of a regulated public utility that performs work on air conditioning or refrigeration equipment must do so exclusively at the utility facility. The amendment applies the exemption to an employee of a public utility who performs air conditioning and refrigeration work in connection with the utility business in which the person is employed. The justification for the amendment to §75.30 is to conform the rule to the statute, which requires an exemption from the Act and these rules to employees of a regulated public utility.

The amendments proposed to §75.40 allow insurance coverage to be purchased from any insurance company rated by A.M.Best Company as B+ or higher; specify that certificates of insurance must be received within 30 days of expiration of the previous certificate and must be furnished to each municipality in which the licensee registers his/her license; and notify contractors that contracting shall not be performed by a licensee that has received a waiver of insurance. The justification for the amendments to §75.40 relating to allowable insurance carriers for licensees is that licensees will be able to choose acceptable insurance companies not licensed in Texas, removing a source of additional expense for some companies not based in Texas. The justification for requiring a certificate of insurance within 30 days of expiration of the previous certificate is to enable the Department to determine earlier when a licensee may be uninsured, which will result in better protection of the public. The notification of contractors that public contracting shall not be performed under a license that has received a waiver of insurance will help prevent uninsured public contracting activity and result in better protection of the public.

The proposed amendment to §75.65 specify that board member expenses may only be reimbursed to the extent of the Department's appropriation for that purpose. The justification for the amendment to §75.65 is to clarify that board members will only be paid expenses as long as such appropriations have not been exhausted.

The amendments proposed in §75.70 clarify that the section applies to an air conditioning and refrigeration contracting company; remove the requirement that the license be displayed in the permanent office of the business to which it is assigned; move the provision that the license number must be on all proposals and invoices to a new subsection concerning invoices; restates the subsection making the licensee responsible for all work performed under his/her license to make it clearer; deletes the requirement that the license must be displayed at the office to which it is assigned; restates the subsection on advertising by listing exclusions to the requirement of showing the license number on all advertising instead of listing the types of advertising that require showing the license number; adds a requirement that the contractor furnish an invoice to all consumers; and clarifies the information to be provided to the Department in the event of change by the licensee. The justification for the amendments to §75.70 is that both companies and licensees must comply with these rules; that the display of a license in the business office is not necessary, since few consumers visit the contractor's office; that the Department can better track responsibility with clear notice to the licensee that he/she is responsible for all work under his/her supervision; that stating the types of advertising that do not require listing the license number will make the rule easier to understand and enforce; that consumers have a right to receive an invoice documenting work performed; and that clarifying the requirements for revising information furnished to the Department will eliminate some of the time spent requesting additional or corrected information.

The amendments to §75.80 delete the reschedule fee and delete references to the wallet card. The justification is that computerized exams do not involve reschedules, so no such fee is required, and that the wallet card is now the license.

The amendments to §75.90 clarify the language regarding administrative sanctions and penalties. The justification is that clear understanding of the section by industry will facilitate compliance with the rules of this Chapter.

The amendments to §75.100 clarify that Duct Cleaning that includes biomedical remediation requires a license under this Act, and add a subsection on Standards for the practice of air conditioning and refrigeration contracting. The justification is that the amendment will facilitate enforcement of duct cleaning companies that engage in biomedical remediation without the required license; and standards that can be applied throughout the state will give better accountability of workmanship and protection to consumers.

The justification for the repeal of §75.25 is that the provisions are previously stated in §75.24.

Jimmy Martin, Director of the Enforcement Division, Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect there will be no fiscal implications for any municipality as a result of enforcing or administering the proposed changes and repeal.

Mr. Martin also has determined that for each year of the first five years these sections are in effect the public benefit anticipated as a result of enforcing the sections will be better enforcement of the licensing requirement, which will result in greater safety for the public.

There is no economic cost anticipated for licensee's for complying with the amendments as proposed. There will be no other additional cost to small businesses or to persons who may be required to comply with the sections as proposed.

Comments on the proposal may be submitted to Jimmy Martin, Director of the Enforcement Division, Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or electronically: jimmy.martin@license.state.tx.us. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Revised Civil Statutes Annotated, Article 8861 which authorizes the Commissioner of the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of the Article.

The Article and Code affected by the proposed amendments is Texas Revised Civil Statutes Annotated, Article 8861 and Texas Occupations Code, Chapter 51.



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