The Texas State Board of Plumbing Examiners (Board) proposes new Chapter 367, concerning Enforcement. The Board proposes this new chapter simultaneously with the proposed repeal of the existing Chapter 367. The proposed new chapter largely retains the requirements set forth in the existing chapter, but divides several of the longer sections into discrete rules that are more compact and easier to navigate. The individual, substantive changes to Chapter 367 as it currently exists, are described below on a section-by-section basis.

The revisions herein were identified during the Board’s periodic rule review of Chapter 367, made in accordance with §2001.039 of the Texas Government Code, and announced by the Board by publication in the November 18, 2016, issue of the Texas Register.

Substantive Changes From Existing Requirements

New §367.1 is proposed to implement the provisions, of §1301.251(2) of the Texas Occupations Code. Proposed §367.1, concerning Authority, contains subsections (a) - (d) of the existing rule and rewords these subsections to include references to the statutes that grant authority to specific persons, like municipalities and Plumbing Inspectors, to enforce Chapter 1301 of the Occupations Code (Plumbing License Law or PLL). The title of the rule is also changed from "General Provisions" to "Authority."

New §367.2 is proposed to implement the provisions, of §§1301.255, 1301.501, 1301.452(a), and 1301.251(2) of the PLL. Proposed §367.2, concerning Code Requirements, reorganizes and rewords the provisions from subsections (e), (g), (h) and the first sentence of (i) of the existing §367.1, to improve clarity. A new provision, subsection (f), is added, prohibiting a licensee or registrant from installing plumbing that is not in compliance with the PLL or any other state laws, Board rules, or any applicable plumbing codes, and prohibiting a person from requiring a licensee or registrant to install non-compliant plumbing.

New §367.3 is proposed to implement the provisions, of §§1301.351, 1301.452(a), 1301.302, 1301.252(a) and 1301.251(2) of the PLL. Proposed §367.3, concerning Standards of Conduct- Licensees and Registrants, rewords subsections (a) through (e) of the existing §367.2. New language is added in proposed §367.3(a)(5) to define the term customer as the person to whom plumbing services were actually provided, even in situations where the services were provided pursuant to a contract with a third party, for purposes of the duty to provide invoices and/or completed contract documents to said customer.

New §367.4 is proposed to implement the provisions, of §§1301.262, 1301.255(e), 1301.503, 1301.551(d), 1301.452(a) and 1301.251(2) of the PLL. Proposed §367.4, concerning Standards of Conduct- Plumbing Inspectors, reorganizes and rewords the provisions contained in subsection (f) of the existing §367.2 to create a standalone section for Plumbing Inspectors and to improve clarity. New language is added in proposed subsection (b) to specify that a Plumbing Inspector is considered to be affiliated with a particular political subdivision if the inspector is employed by or under contract with a political subdivision to perform plumbing inspections or employed by a qualified plumbing inspection company under contract with a political subdivision to perform plumbing inspections. A new provision is also added in proposed subsection (c) to clarify that said subsection, concerning payment accepted by a Plumbing Inspector for a plumbing inspection, does not apply to an inspection subject to §1301.255 of the PLL. Finally, new language is included in proposed subsection (e) to require a Plumbing Inspector to include their license number on any correspondence and on certain documents reflecting whether or not plumbing work has passed an inspection.

New §367.5 is proposed to implement the provisions, of §§1301.002(9-a), 1301.351, 1301.3576 and 1301.251(2) of the PLL. Proposed §367.5, concerning Responsibilities of RMP - General, rewords subsections (a)(3) - (5) and (a)(13) of the existing §367.3 to improve clarity. To more accurately reflect Board procedures, new language is added in proposed subsection (b) requiring a Master Plumber who wishes to be removed or added as the Responsible Master Plumber (RMP) of record for a company to submit written notification of the change to the Board within 10 business days after the effective date of the change. New language is also added in proposed subsection (c) to make it clear that the RMP of record is responsible for all contracts and agreements to perform plumbing secured, and permits obtained, under their Master Plumber License, even if the RMP did not personally obtain the permit or draft or sign the contract or agreement. New subsection (d), formerly subsection (a)(13), is also revised to expressly state that the RMP of record is responsible for the general supervision and management of plumbing work performed under his or her license and the individuals performing the plumbing work, even if those individuals are subcontractors and not employees.

New §367.6 is proposed to implement the provisions, of §§1301.3576, 1301.552 and 1301.251(2) of the PLL. Proposed §367.6, concerning Responsibilities of RMP- Insurance Required, rewords subsections (a)(6) - (9) of the existing §367.3 to create a standalone rule addressing insurance requirements for RMPs. Specifically, in subsection (b), new language is added to reflect the Board’s current procedures requiring the RMP to submit their Certificate of Insurance to the Board through their online account with the Board. Meanwhile, in subsection (c), new language is added imposing a duty on the RMP or owner of a plumbing company to furnish certain information about their insurance carrier to their customers upon request.

New §367.7 is proposed to implement the provisions, of §§1301.351, 1301.356 and 1301.251(2) of the PLL. Proposed §367.7, concerning Responsibilities of RMP- Medical Gas Piping Systems, rewords subsection (b) of the existing §367.3 to improve clarity and create a standalone rule addressing the responsibilities of a RMP who holds a Medical Gas Piping Installation Endorsement, ensuring that the same principles which require a person to secure the services of an RMP in advertising plumbing services and require the RMP to supervise the provision of said services by a plumbing company, are applied to the provision of plumbing services requiring a Medical Gas Piping Installation Endorsement issued by the Board.

New §367.8 is proposed to implement the provisions, of §§1301.351, 1301.3565 and 1301.251(2) of the PLL. Proposed §367.8, concerning Responsibilities of RMP - Multipurpose Residential Fire Protection Sprinkler Systems, rewords subsection (c) of the existing §367.3 to improve clarity and create a standalone rule addressing the responsibilities of a RMP who holds a Multipurpose Residential Fire Protection Sprinkler Specialist Endorsement, ensuring that the same principles which require a person to secure the services of an RMP in advertising plumbing services and require the RMP to supervise the provision of said services by a plumbing company, are applied to the provision of plumbing services requiring a Multipurpose Residential Fire Protection Sprinkler Specialist Endorsement.

New §367.9 is proposed to implement the provisions, of §§1301.351(a-2), 1301.302, 1301.452(a) and 1301.251(2) of the PLL. Proposed §367.9, concerning Advertising; Offering to Perform Plumbing, rewords subsections (a)(1) - (2) of the existing §367.3 to create a standalone rule addressing the requirements a person must meet to be able to advertise or otherwise offer to perform plumbing. New provisions are added in proposed subsection (b) to explain what it means to "secure the services" of a RMP. New provisions are added in proposed subsection (c) to clarify that a licensee who contracts for or otherwise agrees to perform plumbing does not violate §1301.351(a-2) of the PLL if the licensee has a written subcontracting agreement with a person who has secured the services of a RMP; and, to enumerate the requirements of such subcontracting agreement, in proposed subsection (d).

New §367.10 is proposed to implement the provisions, of §§1301.351(a-2), 1301.302 and 1301.251(2) of the PLL. Proposed §367.10, concerning Display of RMP Name and License Number, consolidates subsections (a)(11) - (12) of the existing §367.3 with all of the existing §367.4 to create a single standalone rule addressing the requirements for displaying the name and license number of a RMP of record. New language is added in proposed subsections (b) and (c) to clarify that both the RMP and the owner of a plumbing company are responsible for ensuring that the requisite information concerning disclosure of the RMP and regulation by the Board is displayed on all service vehicles, the first page of each proposal, invoice, or contract, and all advertisements for plumbing services.

New §367.11 is proposed to implement the provisions, of §§1301.351(a), (b), 1301.452(a)(5), 1301.551(d) and 1301.251(2) of the PLL. Proposed §367.11, concerning License or Registration Required, revises and expands upon subsections (b)(2) - (5) of the existing §376.7 to more explicitly state the activities for which a license is required and what constitutes the improper use of a certificate of licensure, pocket card, or license or registration number.

New §367.12 is proposed to implement the provisions, of §§1301.351(d), 1301.203(b), 1301.259 and 1301.251(2) of the PLL. Proposed §367.12, concerning On-Site License and Registration Checks, includes a portion of subsection (a) from the existing §367.4 (requiring a licensee or registrant to carry proof of licensure), all of the existing §367.5, and subsection (a) of the existing §367.8. New language is added in proposed subsection (b) to require licensees and registrants to cooperate with a Field Representative of the Board conducting an on-site check.

New §367.13 is proposed to implement the provisions, of §§1301.301, 1301.303 and 1301.251(2) of the PLL. Proposed §367.13, concerning Filing Complaints, is a completely new rule requiring persons who wish to make a complaint with the Board to do so in writing, enumerates the information a complaint must contain, allows the Director of Enforcement to refuse to accept a complaint that does not contain the information necessary to determine whether the Board has jurisdiction over the alleged activity giving rise to the complaint, and prescribes when the Board may decline to investigate an anonymous complaint.

New §367.14 is proposed to implement the provisions, of §§1301.301, 1301.303, 1301.304 and 1301.251(2) of the PLL. Proposed §367.14, concerning Processing Complaints, is a completely new rule that provides for the Director of Enforcement to review each complaint to determine whether the Board has jurisdiction. If the Board has jurisdiction, the new rule requires the Director of Enforcement to assign a complaint number and appoint a Field Representative to investigate the complaint. If the Board does not have jurisdiction, the rule requires the Director of Enforcement to notify the complainant of that determination in writing.

New §367.15 is proposed to implement the provisions, of §§1301.301, 1301.303, 1301.304, 1301.452(a) and 1301.251(2) of the PLL. Proposed §367.15, concerning Investigating Complaints, rewords and reorganizes subsections (b) - (e) and (h) of the existing §367.8 to improve clarity. Subsections (f) and (g) of the existing §367.8 are deleted as being duplicative of the PLL, and not offering any additional guidance. New language is added in subsection (a) to specify that the Board may open an investigation on its own initiative and in subsection (b) to clarify that the Board has authority to investigate the owner of a company subject to the PLL and a person who advertises or otherwise offers to perform plumbing work without holding a license. A new provision is added in subsection (d) to require licensees and registrants to cooperate with the Board and its Field Representatives during the investigation of a complaint.

New §367.16 is proposed to implement the provisions, of §§1301.258(c), 1301.301, 1301.304, 1301.5045, 1301.451, 1301.452, 1301.701, 1301.5071 and 1301.251(2) of the PLL. Proposed §367.16, concerning Enforcement Committee; Complaint Review, rewords and reorganizes the existing §367.9 to improve clarity. New language is added in subsection (b)(4) to allow the Enforcement Committee to close a complaint if it concludes that the respondent has voluntarily come into compliance with the PLL, Board rules, or a Board order. New language is added in subsection (c) to more clearly explain the circumstances under which the Enforcement Committee may close a complaint and issue a warning.

New §367.17 is proposed to implement the provisions, of §§1301.451, 1301.452, 1301.701, 1301.702 and 1301.251(2) of the PLL. Proposed §367.17, concerning Administrative Penalty, includes the existing §367.10 and makes non-substantive changes to ensure that the terms respondent and SOAH are used consistently throughout the rule and all of the new Chapter 367. The penalty schedule contained in the proposed §367.17 is updated to conform to the new section numbers resulting from prior changes to Chapters 361, 363 and 365 of the Board rules made as a result of the Board’s quadrennial rule review pursuant to §2001.039 of the Texas Government Code, and the changes to Chapter 367 proposed herein. Several of the penalty amounts in said schedule are revised. The following items, previously constituting grounds for imposition of an administrative penalty in the existing Chapter 367, are added to the schedule as discrete penalties:

Failing to verify a Certificate of Insurance (COI) on the Board's website before issuing a permit (under the authority, and to implement the provisions, of §§1301.552, 1301.701, 1301.702 and 1301.251(2) of the PLL);

Performing a plumbing inspection while having a financial or advisory interest in a plumbing company (under the authority, and to implement the provisions, of §§1301.353, 1301.262, 1301.701, 1301.702 and 1301.251(2) of the PLL);

Failing to provide a six-hour continuing professional education course (under the authority, and to implement the provisions, of §§1301.404(b) - (d), 1301.405(a), (b), 1301.701, 1301.702 and 1301.251(2) of the PLL);

Violating a Cease and Desist Order (under the authority, and to implement the provisions, of §§1301.5045, 1301.701, 1301.702 and 1301.251(2) of the PLL);

Engaging in plumbing without direct supervision (under the authority, and to implement the provisions, of §§1301.351(a), 1301.701, 1301.702 and 1301.251(2) of the PLL);

Refusing to fill out an Employer Certification Form (under the authority, and to implement the provisions, of §§1301.002(4), (10), 1301.352, 1301.354(b), 1301.701, 1301.702, 1301.452(a) and 1301.251(2) of the PLL); and,

Requiring a person who obtains a permit to pay a registration or administrative fee (under the authority, and to implement the provisions, of §§1301.551(g), 1301.701, 1301.702, 1301.452(a) and 1301.251(2) of the PLL).

The following wholly new penalties are added, arising from new regulations imposed by the proposed new Chapter 367:

Failing to include inspector license number on an inspection report (under the authority, and to implement the provisions, of §§1301.255(e), 1301.262, 1301.353, 1301.701, 1301.702, 1301.452(a) and 1301.251(2) of the PLL); and,

Failing to provide insurance information to a customer upon request (under the authority, and to implement the provisions, of §§1301.3576, 1301.552, 1301.701, 1301.702, and 1301.251(2) of the PLL).

New §367.18 is proposed to implement the provisions, of §§1301.451, 1301.452, 1301.5045, and 1301.701 of the PLL. Proposed §367.18, concerning Reprimand; Probation; Suspension; Revocation, includes the existing §367.11. New language is added to subsection (a) to add citations of statutory authority concerning the duty of the Board to revoke, suspend, or refuse to renew a license, endorsement, or registration or reprimand a holder of a license or registration, upon the determination that a violation of the PLL, an order issued by the Board, or of a Board Rule has occurred.

New §367.19 is proposed to implement the provisions, of §§1301.451, 1301.453, 1301.454 and 1301.251(2) of the PLL. Proposed §367.19, concerning Failure to Request a Hearing After Notice of Intent to Deny or Revoke, includes the existing §367.12. A reference to §1301.451 of the PLL is added in subsection (a) to clarify that §367.19 applies to a denial, revocation, or suspension arising from §1301.451 of the PLL.

New §367.20 is proposed to implement the provisions, of §§1301.5071 and 1301.251(2) of the PLL. Proposed §367.20, concerning Informal Conference; Violation of Law, Rule or Board Order, includes the existing §367.13 and is generally reworded to improve clarity. New language is added to subsection (a) to allow the Enforcement Committee to invite the complainant or a third party with information relevant to the investigation to attend an informal conference. Subsection (b), which addresses the notice of the informal conference provided to the respondent, is expanded to specify what information the notice must include and when the notice must be sent. Subsection (d) requires the Enforcement Committee to set a formal hearing at the State Office of Administrative Hearings (SOAH) if the informal conference fails to result in an agreed settlement and the respondent requests a hearing.

New §367.21 is proposed to implement the provisions, of §§1301.454, 1301.713, and 1301.251(2) of the PLL. Proposed §367.21, concerning Contested Case; State Office of Administrative Hearings, includes the existing §367.14 and makes non-substantive changes to ensure that the terms respondent and SOAH are used consistently throughout the rule and all of the new Chapter 367.