The Texas State Board of Plumbing Examiners (Board or TSBPE) proposes amendments to the existing rules at 22 Texas Administrative Code (TAC), Chapter 361, §§361.1, 361.4, 361.6, 361.10, 361.12, and 361.15, all of which concern definitions and general provisions. The proposed amendments are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The proposed rules implement changes to Texas Occupations Code, Chapter 1301 (Plumbing License Law or PLL) as amended by House Bill 636 (HB 636), 87th Texas Legislature, Regular Session, 2021 and Board efforts to improve regulation of the industry by simplifying the rules as part of its four-year rule review. The proposed rules simplify the existing rules by eliminating unnecessary language and internal references. This allows the rules to stay current regardless of changes to referenced laws or rules. In addition, the Board has sought to expand the definition of "Direct Supervision" to modernize the rule to address current industry practice post-pandemic.

HB 636 amended the Plumbing License Law. Statutory changes eliminated the requirement that a responsible master plumber (RMP) complete an approved training program regarding the laws and rules applicable to the operation of a plumbing business in Texas. HB 636 added a qualification path for licensure as a Tradesman-Limited Plumber upon successful examination and completion of a career and technology education program offered by a high school or institution of higher education approved by Texas Education Agency and the Board. HB 636 further amended Section 1301.404 to vest the authority for the administrative approval of continuing professional education programs and instructors in the Executive Director rather than the Board. HB 636 amended Section 1301.304 to move the responsibility to investigate violations of the PLL or rules from the Enforcement Committee to the Board, or a Board-designated employee. The proposed rules facilitate the statutory changes made by HB 636.

The Board, under it general rule-making authority in Section 1301.251 of Texas Occupations Code and part of its four-year rule review of the existing rules at 22 Texas Administrative Code (TAC) Chapter 361, initiated a rule simplification initiative to make the rules easier to understand and enforce by eliminating unnecessary language, adding clarifying language, and restructuring regulations to make the rules more efficient. Unnecessary internal references to rule and statute have been eliminated to keep the rules current regardless of changes to statute and rule.

SECTION BY SECTION SUMMARY

Section 361.1 lists definitions. The definitions do not create any affirmative duty on or regulation of registrants or licensees. The definitions simply define terms for use by the rules and PLL. The following definitions have been amended as follows:

(3) Advisory Committee: The language has been updated to be more concise and eliminates unnecessary and outdated rule reference. This allows the rules to stay current regardless of changes to referenced laws or rules.

(9) Certificate of Insurance. The language has been updated to be more concise and eliminates unnecessary and outdated rule and statutory references. This allows the rules to stay current regardless of changes to referenced laws or rules.

(14) Complaint. The language has been updated to be more concise.

(18) Direct Supervision. On-the-job oversight and supervision is amended to show that direct supervision may include virtual visual, real-time communication. This rule is amended on a recommendation by the workgroup. The pandemic created necessary social-distancing practices for virtual supervision to ensure worker safety across all industries. Technology supported social distancing by providing the capability to visually stream or project the job site in real-time such as on Facetime, Zoom, etc. These practices demonstrated that such technology could be successfully utilized to provide service and supervision. As such, the definition is amended to allow a Responsible Master Plumber (RMP) the flexibility to choose how they supervise their staff aided by technology as they see fit. This rule does not alleviate the responsibility of the RMP from adequate supervision or from ensuring that work is performed to code. It is in the RMP's discretion to utilize optional technology as they deem it appropriate given their job sites, staff, and technological capacities. Should inspection or investigation be done on the job site, any present licensee or registrant must demonstrate that real-time, visual communication is successful and effective.

(21) Field Representative. The amendment makes the rule more concise by eliminating an unnecessary reference and correcting a spelling mistake.

(23) License. The language has been updated to be more concise.

(25) Maintenance Man or Maintenance Engineer. This definition defines what work maintenance staff may perform. The definition is amended to include longstanding and inadvertently repealed language showing that work "incidental to and in connection with" maintenance duties does not include cutting into fuel gas plumbing systems and installation of gas fueled water heaters. This language was present from 2000 until July 2017 when the rule was re-organized. Staff, discovering the inadvertent deletion during the four-year rule review, believes it was repealed in error. The long-standing language is reclaimed into the definition to provide clarifying guidance for ease of use and does not expand or restrict the current industry practice of maintenance men or maintenance engineers.

(36) Petitioner. The definition is updated to eliminate unnecessary references. This allows the rules to stay current regardless of changes to referenced laws or rules.

(39) Plumbing Inspector. The definition is updated to eliminate unnecessary references. This allows the rule to stay current regardless of changes to referenced laws or rules.

(47) Responsible Master Plumber. The definition is updated to eliminate unnecessary references. This allows the rule to stay current regardless of changes to referenced laws or rules.

Section 361.1(b) states that any definition not in rule is defined by the statute. This language is unnecessary and deleted to make the rule more concise.

Section 361.4 Language requiring the Board to set forth in writing procedures for its operation is not required in statute and is deleted to make the rule more concise.

Section 361.6 Renewal fees for Med Gas, Multipurpose Residential Fire Protection Sprinkler Specialists, Water Supply Protection Specialists endorsements and the related late renewal fees for such endorsements are eliminated. The Board has not been collecting these fees. The rules simply update their current practice.

Section 361.10 Based on the recommendation of the Director of Finance, the Historically Underutilized Business (HUB) Program rule is amended to incorporate the rules of the Texas Comptroller of Public Accounts, not the Texas Facilities Commission.

Section 361.12 Rule provisions, not required by statute, for advisory boards are eliminated to make the rule more concise. The Board currently has no advisory boards.

Section 361.15 Rule language about when the Board will elect a secretary is eliminated as unnecessary and not required by Section 1301.157 of the statute.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Lisa G. Hill, Executive Director for the Board (Executive Director), has determined that for the first five-year period the proposed rules are in effect, there are no foreseeable increases or reductions in costs to the state or local governments as a result of enforcing or administering the rule. The Executive Director has further determined that for the first five-year period the proposed rules are in effect, there will be no foreseeable losses or increases in revenue for the state or local governments as a result of enforcing or administering the rules.

PUBLIC BENEFITS

The Executive Director has determined that for each of the first five years the proposed rules are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be to have fewer regulatory barriers and rules that are easier to use and enforce.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH THE RULE

The executive director has determined that for the first five years the proposed rules are in effect, there are no substantial economic costs anticipated to persons required to comply with the proposed rules.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Given that the proposed rules do not have a fiscal note which imposes a cost on regulated persons, including another state agency, a special district, or local government, proposal and adoption of the rules are not subject to the requirements of Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

For each of the first five years the proposed rules are in effect, the Board has determined the following: (1) the proposed rules do not create or eliminate a government program; (2) implementation of the proposed rules do not require the creation of new employee positions or the elimination of existing employee positions; (3) implementation of the proposed rules do not require an increase or decrease in future legislative appropriations to the agency; (4) the proposed rules do not require an increase or decrease in fees paid to the agency; (5) the proposed rules do not create a new regulation; (6) the proposed rules do not expand, limit, or repeal an existing regulation; (7) the proposed rules do not increase or decrease the number of individuals subject to the rule's applicability; and (8) the proposed rules do not positively or adversely affect this state's economy.

LOCAL EMPLOYMENT IMPACT STATEMENT

No local economies are substantially affected by the proposed rules. As a result, preparation of a local employment impact statement pursuant to Government Code §2001.022 is not required.

FISCAL IMPACT ON SMALL AND MICRO-BUSINESS, AND RURAL COMMUNITIES

The proposed rules will not have an adverse effect on small or micro-businesses, or rural communities because there are no substantial economic costs anticipated to persons required to comply with the proposed rules. As a result, preparation of an economic impact statement and a regulatory flexibility analysis, as provided by Government Code §2006.002, are not required.

TAKINGS IMPACT ASSESSMENT

There are no private real property interests affected by the proposed rules. As a result, preparation of a takings impact assessment, as provided by Government Code §2007.043, is not required.

PUBLIC COMMENTS

Written comments regarding the proposed rules may be submitted by mail to Lynn Latombe at P.O. Box 4200, Austin, Texas 78765-4200, or by email to rule.comment@tsbpe.texas.gov with the subject line "Rule Amendment." All comments must be received within 30 days of publication of this proposal.

STATUTORY AUTHORITY

This proposal is made under the authority of §1301.251(2) of the Texas Occupations Code authorizes the Texas State Board of Plumbing Examiners to adopt rules as necessary to implement the Chapter.

No other statutes or rules are affected by the proposal.