INTRODUCTION: The Texas State Board of Plumbing Examiners ("the Board") adopts amendments to §§365.1, 365.4-365.14 and the repeal of §365.2, concerning Licensing. Section 365.1 is adopted with changes to the proposed text as published in the September 28, 2001, issue of the Texas Register (26 TexReg 7403). Sections 365.4-365.14 and the repeal of §365.2 are adopted without changes and will not be republished. During the 77th Legislature House Bills 217 and 1505 were signed into law. As a result of these two House Bills, the Plumbing License Law is amended. The rule amendments are adopted substantially to implement the requirements of HB 217 and HB 1505. The Board's legal representative from the Office of the Attorney General has advised that the changes affect no new persons, entities, or subjects. The changes to the proposed text are found in the introduction statement in rule Section 365.1, License and registration Categories; Description; Scope of Work Permitted, and are explained elsewhere in this preamble.

REASONED JUSTIFICATION: The major requirements of HB 217 and HB 1505 are explained as follows:

House Bill (HB) 217 amends the Plumbing License Law to modify the plumbing codes that the Board is required to adopt and authorizes the Board to adopt later editions of the plumbing codes. The Southern Standard Plumbing Code and the National Standard Plumbing Code were eliminated from the codes adopted by the Board. The Uniform Plumbing Code was maintained and the International Plumbing Code was added, resulting in two Plumbing Codes to be adopted by the Board. The bill provides that plumbing installed in an area not otherwise subject to regulation under the Plumbing License Law must be installed in accordance with a Board adopted plumbing code. The bill authorizes municipalities or owners of a public water system the ability to amend any provisions of the codes and standards to conform to local concerns that do not substantially vary with rules or laws of this state. The bill provides that plumbing installed in compliance with an adopted plumbing code must be inspected by a licensed plumbing inspector. (Section 3)

Under HB 217, the Board's jurisdiction was greatly expanded by requiring that all plumbing work connected to a public water system, or performed in any city in the state be performed by a licensed plumber. This eliminated the exemption, which had been in place since 1947, requiring a plumbing license in only cities with populations of 5,000 or more inhabitants (Section 2).

Under HB 217, Licensed Plumbing Inspectors are no longer restricted to being bona fide employees of a political subdivision, but were allowed to contract with a political subdivision as long as they are paid directly by the political subdivision (Sections 1 and 3).

House Bill (HB) 1505 amends the Plumbing License Law by clarifying some existing language and effectively regulating all facets of plumbing work and individuals engaged in plumbing work.

HB 1505 clarifies that medical gasses and vacuum are included in the definition of "plumbing" (Section 1).

HB 1505 establishes a new Tradesman Plumber-Limited license and four new registrations. HB 1505 mandates, by law, experience and qualification requirements for all licenses and registrations issued by the Board. The new Tradesman Plumber-Limited license authorizes individuals to engage in the construction and installation of plumbing only in one and two-family dwellings, after passing an examination administered by the Board. HB 1505 provides for registrations authorizing individuals to install residential yard water and sewer lines (Residential Utilities Installer); remove p-traps and install clean-outs to clear obstructions in sewer lines (Drain Cleaner); clear obstructions in sewer lines through existing openings only (Drain Cleaner-Restricted Registrant); and assist in the installation of plumbing work (Plumber's Apprentice). HB 1505 requires all registrants and licensees to work under the general supervision of a Master Plumber and Residential Utilities Installers, Drain Cleaners and Drain Cleaner-Restricted Registrants to maintain registrations as a Plumber's Apprentice (Sections 1 and 5).

HB 1505 provides the Board with express authority to adopt rules and take other actions as the Board deems necessary to administer this law including provisions relating to the new classes of registrants and licensees (Sections 5, 9, 11, and 14).

HB 1505 authorizes the Board to appoint advisory committees as it considers necessary (Section 5).

HB 1505 requires, rather than authorizes, the Board to recognize, approve, and administer continuing education programs for licensees and endorsees (Section 5).

Under HB 1505, the Licensed Sanitary Engineer position on the Board was changed to a Licensed Professional Engineer. Clarification that the Master Plumber Position, Journeyman Plumber Position, and Plumbing Inspector position on the Board, must be licensees of the Board was also included (Section 5).

HB 1505 requires a person who desires to learn the trade of plumbing to register as a Plumber's Apprentice before beginning to assist a licensee at the trade of plumbing (Section 13).

HB 1505 requires that no person, whether as a master plumber, journeyman plumber, tradesman plumber-limited licensee, plumber's apprentice, residential utilities installer, drain cleaner, drain cleaner-restricted registrant, or otherwise engage in, work at, or conduct the business of plumbing in this state or serve as a plumbing inspector unless such a person is the holder of a valid license, endorsement, or registration. Additionally, this Section states that it shall be unlawful for any person, firm or corporation to engage in or work at the business of installing plumbing work except as specifically herein provided unless such installation of plumbing or plumbing work be under the supervision and control of a plumber licensed under the Act. (Section 16).

HB 1505 authorizes the Board to monitor insurance requirements for Master Plumbers responsible for the operation of a plumbing business by requiring them to submit a certificate of insurance to the Board (Section 17).

HB 1505 requires that the installation and replacement of water heaters be inspected by a Licensed Plumbing Inspector (Section 17).

HB 1505 also requires municipal plumbing inspections to be performed by licensed plumbing inspectors and provides that if the boundaries of a municipality and a municipal utility district overlap, only the affected municipality may perform a plumbing inspection and collect a permit fee (Section 17).

HB 1505 requires the Board to adopt the required rules necessary to implement this law no later than January 1, 2002 (Section 24).

The following is an outline of the sections being amended and deleted in Chapter 365:

Section 365.1, regarding license and registration categories; description; scope of work permitted, (4)-(10). The introductory statement in this Section is also being amended to simply include the new license and registrations added by HB 1505. Through an oversight, the amendments to the introductory statement were not shown in the published proposed amendments to this Section. However, the amendments to the introductory statement are non-substantive and do not add any new requirements or affect any new persons or subjects and do not require republication of the adopted sections as proposed amendments.

Registration is being added to the section title. Independent contractor is replacing agent in paragraph (4). Also, in new subparagraphs (E) and (F) the definition of plumbing inspector is more defined. The section is also adding new definitions to include: Tradesman Plumber-Limited Licensee; Residential Utilities Installer; Drain Cleaner; Drain Cleaner-Restricted Registrant; and Plumber's Apprentice.

Section 365.2 regarding apprentice registration is being repealed. The language in this rule has been amended and moved into other sections.

Section 365.4, regarding issuance, (a)-(c). Subsection (a) is being amended to include registration. Also, a new subsection (c) is being added to include licenses, endorsements and registrations.

Section 365.5, regarding renewals, (a)-(g).

This section is being amended to add: "registrant," "registration" to subsections (a)-(c). Also, Tradesman Plumber-Limited Licensee is being added to the individuals wishing to renew a license. Professional and CPE is being added to the applicable course title.

Section 365.6, regarding expirations (a)-(e).

This section is being amended similar to 365.5 to include registration, professional, and endorsement to the existing text. Section 365.7, regarding duplicate license.

"Registration" is now included when referencing replacement documents issued by the Board.

Section 365.8, regarding change of name or address, (a)-(b).

"Registrant" and "Registration" are being added to subsection (a). Subsection (b) is being amended to replace "agency" with "contract."

Section 365.9, regarding reprimand, suspension, revocation, (a)-(c).

The section is being amended to replace old statutory language with the current Government Code, Section 2001. "Registrant" and "Registration" are also being added to this section.

Sections 365.10, 365.11, and 365.12 are all being amended to update legal cites to correspond with recent legislation.

Section 365.13, regarding licensing of guaranteed student loan defaulters, (a)-(e). "Registration" and "registrant" are being added throughout this section.

Section 365.14, regarding continuing professional education programs, (a) and (c). Tradesman Plumber-Restricted Licensee is being added to subsections (a) and (c).

Also, as a result of HB 217 and HB 1505, the Texas State Board of Plumbing Examiners adopts amendments to Chapters 361, 363, and 367 elsewhere in this issue of the Texas Register.

The Board received written comments following the proposal of the rules and held a public hearing on November 7, 2001, in Austin, Texas, to receive additional written and oral comments.

The following entities and individuals furnished written or oral comments in favor of all or specific sections of the proposed Chapter 365 rules:

A person representing the statewide association of the Texas Association of Plumbing Inspectors, who claimed a membership of more than 300 plumbing inspectors in more than 200 cities in Texas and has been an association for at least 54 years, submitted comments stating that the association is in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

A person representing the Plumbing/Mechanical Officials of North Texas, who claimed a membership of more than 80 plumbing inspectors in more than 40 cities in the Dallas-Fort Worth area and has been an association for at least 40 years, submitted comments stating that the association is in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

Five plumbing inspectors for the City of Amarillo plumbing inspection department submitted comments in favor of all of the Board's Rules as proposed.

The Chief Plumbing Inspector of the City of San Antonio submitted comments in favor of all of the Board's rules as proposed.

The Chief Plumbing Inspector of the City of Houston submitted comments in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

An individual licensed plumbing inspector, who is employed by a city, submitted comments in favor of all of the Board's rules as proposed.

An individual licensed plumbing inspector, who contracts with multiple political subdivisions and is paid directly by each political subdivision, submitted comments in favor of the Board's rules as proposed in Chapter 365.

A plumbing inspector from the City of Texarkana Water Utilities commented in favor of all of the Board's rules as proposed.

A person representing the Mechanical Contractors Association of Houston, Inc., who claimed a membership of 95 contractors, commented that the association is in favor of all of the Board's rules as proposed. In addition, the association specifically commented in favor of the definition of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

A person representing the Mechanical Contractors Association of Austin, who claimed a membership of 18 contractors that employ 600-700 plumbers, commented that the association is in favor of all of the Board's rules as proposed. In addition, the association specifically commented in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

An individual representing a mechanical and plumbing contractor provided comments in favor of all of the Board's rules as proposed. In addition, the individual specifically commented in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

A person representing the statewide association of the Associated Plumbing-Heating-Cooling Contractors of Texas (APHCCT), who claimed a membership of thousands, including associates, plumbing inspectors and more than 250 plumbing companies, commented that the association is in favor of all of the Board's rules as proposed. In addition, APHCCT specifically commented in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

A person representing the Austin Chapter of the APHCCT commented that the Austin Chapter is in favor of all of the Board's rules as proposed.

A person representing the APHCCT of North Texas commented that the North Texas Chapter is in favor of all of the Board's rules as proposed.

A person representing the Waco Chapter of the APHCCT commented that the Waco Chapter is in favor of all of the Board's rules as proposed.

A person representing the statewide association of Texas Plumbing, Air Conditioning and Mechanical Contractors Association, who claim to have more than 350 voting members, commented that the association is in favor of all of the Board's rules as proposed.

A person representing the Texas Plumbing, Air Conditioning and Mechanical Contractors Association of Houston, who claim to have more than 250 voting members, commented that the Houston Chapter is in favor of all of the Board's rules as proposed.

Twenty-one individual plumbing contractors submitted comments in favor of all of the Board's rules as proposed and several specifically commented in favor of the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B).

The following individuals or entities furnished written or oral comments as resource witnesses regarding the proposed rules:

One individual who represented herself as a concerned housewife, commented on the numerous plumbing problems that she experienced with her new home including mold infestation. The individual stated that she believes that there should be more stringent rules for plumbers and plumbing inspectors and a master plumber on every plumbing job.

One individual who represented herself as a homeowner, commented on the plumbing problems that she had on her new home and attributed them to the plumbing installation and the plumbing inspection performed by a third party. The individual stated that she believes that consumers need to be protected from poor plumbing practices and poor plumbing inspections.

One person representing homeowners and the association of Home Owners for Better Building commented that she had not reviewed the proposed rules thoroughly and could not comment specifically regarding the proposed rules. The person commented on the plumbing installation and inspection practices in some areas of the state. The person stated that she believes that the Board should protect consumers. The person stated that she is opposed to inspections performed by a third party and believes that a master plumber should supervise every plumbing job.

The following entities and individuals furnished written or oral comments in opposition to all or specific sections of the proposed Chapter 365 rules:

Two persons from an incorporated plumbing inspection firm, one who is a licensed plumbing inspector, commented on the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). The persons stated that the rule will prohibit a licensed plumbing inspector from being paid by a company, corporation, etc., that has contracted with a political subdivision to perform plumbing inspections. The persons stated the proposed rule is discriminatory and will prohibit licensed plumbing inspectors from receiving benefits such as health insurance, workers compensation insurance, etc., that the plumbing inspector would receive from the company or corporation employing the plumbing inspector. The persons expanded on their belief that plumbing inspection firms offer advantages that plumbing inspectors paid directly by political subdivision do not. The persons also recommended that the Board delete rule Sections 365.1(4)(D) and Section 365.5(d) and allow plumbing inspectors to perform plumbing inspections and renew their license without providing proof to the Board that are employed by or have contracted with a political subdivision.

Two persons representing The Coalition of Third Party Inspection Companies, whose members are the persons' two plumbing inspection companies, submitted comments opposed to the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). One of the individuals stated that it is not necessary for plumbing inspectors to be paid directly by a political subdivision. These two persons also presented similar comments on their own behalf, as officers of two plumbing inspection companies.

A licensed plumbing inspector representing the City of Hamilton commented in opposition to the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). The City of Hamilton believes that in the event that a plumbing inspector is unable to perform a scheduled plumbing inspection, it will be a problem for a city to get a back-up plumbing inspector if the city must pay the plumbing inspectors directly.