Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Elimination of Architectural Barriers
16 Texas Administrative Code, amendments at Chapter 68, §75.75; new rule §68.104

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 68, §68.100, regarding the Elimination of Architectural Barriers Program without changes to the proposed text as published in the January 24, 2020, issue of the Texas Register (45 TexReg 499).

The Commission also adopts a new rule at 16 TAC Chapter 68, §68.104, regarding the Elimination of Architectural Barriers Program with changes to the proposed text as published in the January 24, 2020, issue of the Texas Register (45 TexReg 499).

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules update a reference from the “Commission” to the “Department.” The adopted rules also implement necessary changes required by House Bill (HB) 3163, 86th Legislature, Regular Session (2019).

SECTION-BY-SECTION SUMMARY

The adopted rules amend §68.100, by updating the reference from the “Commission” to the “Department.”

Adopted new §68.104 implements statutory changes required by HB 3163, which set requirements for paved accessible parking spaces. This includes painting the International Symbol of Accessibility on paved accessible parking spaces along with the words “NO PARKING” adjacent to accessible parking spaces. The rules also included a requirement for signage to identify the potential consequences for parking illegally in an accessible parking space. As result of the public comments, changes were made to various subsections of the rule. Subsection (a)(1) was changed to reference the “International Symbol of Accessibility,” instead of “international symbol of access.” Subsection (a)(2)(B) was changed to reference “twelve inches” instead of “one foot.” Subsection (a)(3)(D) was changed to reference “48 inches” instead of “4 feet,” and “6 feet” was changed to “80 inches” for consistency with the Texas Accessibility Standards. Subsection (b) incurred multiple changes for clarification of the rule.

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 January 24, 2020, issue of the Texas Register (45 TexReg 499). The deadline for public comments was February 24, 2020. The Department received comments from 37 interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment: The Department received a specific complaint from an individual regarding accessibility unrelated to the proposal.

Department Response: The complaint is beyond the scope of the proposal and was forwarded to the appropriate division within the Department for response. No change was made to the proposal in response to this comment.

Comment: The Department received a complaint from an individual regarding accessible parking which is unrelated to the proposal.

Department Response: The comment is beyond the scope of the rules and the Department did not make any changes to the proposal in response to this comment.

Comment: The Department received three comments from individuals. The individuals made general recommendations regarding accessibility and enforcement of parking violations.

Department Response: The comments are beyond the scope of the proposed rules. The Department did not make any changes to the proposal in response to these comments.

Comment: The Department received a comment from an individual suggesting changes to parking space identification signs.

Department Response: The comment is beyond the scope of the proposed rules. The Department did not make any changes to the proposal in response to this comment.

Comment: The Department received a comment from the Traffic Operations Support Group (TOSG). TOSG submitted a request for approval unrelated to the proposal.

Department Response: The Department notes that TOSG’s submission is issue-specific and will not be addressed in this preamble. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received five comments from individuals in general support of the proposed rules.

Department Response: The Department thanks the individuals for submitting their support for the proposed rules. The Department notes that the commenters did not submit any suggested edits or propose any alternative language that directly related to the proposal and no changes were made in response to these comments.

Comment: The Department received a comment from an individual in support of the requirement to mark access aisles with the words, “NO PARKING.” The individual also made additional comments relating to the size of parking spots, the need for special placards for vans, as well as additional accessible parking spots.

Department Response: The Department thanks the individual for expressing support for the proposed rules. The Department notes that it does not have regulatory authority over parking placards; the commenter may contact the Texas Department of Motor Vehicles, the agency that regulates disabled parking, placards, and plates. Regarding the individual’s suggestions related to the size and number of parking spots, the Department notes that those comments are beyond the scope of this proposal and require amendments to the Texas Accessibility Standards (TAS). The Department did not make any changes to the proposed rules in response to these comments.

Comment: The Department received a comment from an individual in general support of the proposal. The individual also commented that cities should be required to repair sidewalks and bridges to permit the safe flow of wheelchair traffic.

Department Response: The Department thanks the commenter for expressing general support about the proposal. The individual’s comments regarding required repairs are beyond the scope of this proposal; no changes to the proposed rules were made in response to these comments.

Comment: One individual submitted a comment seeking guidance regarding the placement of the words “NO PARKING” within the access aisles.

Department Response: The proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Texas Apartment Association submitted a comment seeking clarification regarding the definition of the word “paved.” The Texas Apartment Association also sought information regarding potential consequences if painted letters became eroded due to normal wear and tear.

Department Response: The proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. Compliance with §68.104 will be determined at the time of construction. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a question regarding the effective date of the rules.

Department Response: The adopted rules will be effective 20 days after the they are submitted to the Texas Register by the Department. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a comment of general support for the proposal. The commenter stated that the proposed rules should apply to all accessible parking spaces since the cost of compliance would be minimal. The commenter also stated that there should be a deadline for complying with the proposed rules.

Department Response: The Department appreciates the comment in support of the proposed rules. Per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the adopted rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received a comment of general support from an individual. The individual stated that the proposed rules should apply to all accessible parking spaces.

Department Response: The Department appreciates the comment in support of the changes. The Department does not have the statutory authority under HB 3163 to make the rules retroactive, and thereby apply to all accessible parking spaces in existence. Per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the adopted rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a question asking whether the proposed rules would be retroactive and apply to existing facilities.

Department Response: The proposed rules will not apply retroactively. Per §469.003 of the Occupations Code, the proposed rules will only apply to buildings that are registered to be newly constructed, renovated, or modified after on or the effective date of the adopted rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual commented that they would like the rules to apply to accessible parking spaces that are repainted, in addition to newly built spaces.

Department Response: Per §469.003 of the Occupations Code, the proposed rules only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the adopted rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a comment stating that the rules should not be retroactive, and all current accessible parking spaces should be grandfathered to ensure buildings are compliant to avoid enforcement issues.

Department Response: The Department disagrees with this comment; the rules are not retroactive. Per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the adopted rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received three comments from Fountainhead Management, Inc., the Texas Hospital Association, and an individual requesting the addition of a section to §68.104 to clarify that the adopted rule will only apply to paved accessible parking spaces in the scope of new construction, renovation or modification projects.

Department Response: The Department disagrees with the need for a statement of clarification to §68.104 in order to ensure that existing paved accessible parking spaces which are not part of a new construction, renovation, or modification project are excluded from the requirements of the adopted rule. Per §469.003 of the Occupations Code, the proposed rules will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received a comment from the Accessibility Professionals Association (APA) with multiple suggestions regarding proposed §68.104.

-The APA suggested that the reference to the “international symbol of access,” in proposed §68.104(a)(1) be changed to “International Symbol of Accessibility,” to align with the phrase used in TAS.

-The APA suggested the language in §68.104(a)(2)(B) which says, “one foot,” be changed to “12 inches,” for consistency with other references to measure in that section.

-The APA stated that proposed §68.104(a)(1) does not provide guidance to define the meaning of the word “conspicuously” and suggested that the word be defined using language found in the California Building Code.

-The APA suggested an exception to the requirement to paint the words “NO PARKING” on access aisles in proposed §68.104(a)(2), by permitting the use of a “pipe bollard, concrete filled, and painted yellow.” However, the APA also pointed out that the use of a pipe bollard could result in obstruction of the access aisles if not properly placed.

Department Response: The Department will respond to each of the APA’s comments separately.

-The Department agrees with the APA’s suggestion to change the reference in proposed §68.104(a)(1) from “international symbol of access” to “International Symbol of Accessibility.” The Department has made that change to ensure consistency with the TAS.

-The Department agrees with the APA’s comment regarding §68.104(a)(2)(B). Subsections §68.104(a)(2)(B) and (a)(3)(D) have been changed in response to the APA’s suggestion to ensure consistency with the TAS.

-The Department disagrees with the APA’s comment regarding the need to define the word “conspicuously.” The proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. The Department did not make any changes to the proposed rules in response to this comment.

-The Department disagrees with the APA’s comment regarding the use of pipe bollards in lieu of painting access aisles with the words “NO PARKING.” The proposed rules implement HB 3163, which requires painting the words on any adjacent access aisle. There is no discretion to permit an alternative option; additionally, as the APA points out, the use of the pipe bollard could create an issue with access by obstructing access ways. The Department did not make any changes to the proposed rules in response to these comments.

Comment: The Department received a comment from an individual in general support of the proposed rules. The individual submitted multiple questions and suggestions regarding proposed §68.104.

-The individual sought clarification regarding the placement of the “international symbol of access” within the parking stall.

-The individual inquired whether the required letter size for the words “NO PARKING” could be accommodated without stacking the words.

-The individual suggested that the words “NO PARKING” should be painted in contrast with the pavement.

-The individual requested that cities be required to use the van stall layout.

Department Response: The Department appreciates the comment in support of the changes. The Department will respond to each of the individual’s comments separately.

- The Department disagrees with the individual’s comment regarding the need to clarify the placement of the International Symbol of Accessibility. The proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. The Department did not make any changes to the proposed rules in response to this comment.

-In response to the individual’s question regarding accommodation of the words “NO PARKING” on required signage, the Department notes that the proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. The Department did not make any changes to the proposed rules in response to this comment.

- The Department disagrees with the suggestion to require that the words “NO PARKING” be painted in contrast with the pavement. The proposal provides the building owner with discretion to determine the best manner to implement and ensure compliance with the rules. The Department did not make any changes to the proposed rules in response to this comment.

-The individual’s request to require the use of van stalls is beyond the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a comment suggesting the parking space identification sign which includes the consequences for parking illegally should also be posted in adjacent aisles.

Department Response: The Department disagrees. House Bill 3163 only requires the consequences of parking illegally be included on a parking space identification sign. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a comment that additional signs identifying consequences of parking illegally should be required on each side of accessible parking spaces. The individual also submitted general comments regarding the elimination of architectural barriers, including requiring parking spaces to be four feet above the 500-year flood plain; requiring new senior and disabled PHA’s to have disability ramps; and requiring that buildings be constructed of concrete and steel.

Department Response: The Department disagrees. House Bill 3163 requires the consequences of parking illegally be included on a parking space identification sign. While the Department recognizes the need to eliminate architectural barriers, the individual’s additional comments are beyond the scope of the proposed rules and the Department’s statutory authority. The Department did not make any changes to the proposed rules in response to these comments.

Comment: One individual stated that the “NO PARKING” sign is not a good idea and suggested adding a “wheelchair only” sign for the first parking space to accommodate those individuals, as well as additional room for that parking.

Department response: The Department disagrees with this comment. The proposed rules are necessary to implement HB 3163. The individual’s suggestions are beyond the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to these comments.

Comment: One individual commented that the signage required by §68.104 should be on a “visible pole or stand” so that it can be seen from afar. The individual also asked a question regarding parking spaces.

Department Response: The Department disagrees. House Bill 3163 requires the consequences of parking illegally be included on a parking space identification sign. The individual’s question is issue-specific and beyond the scope of the proposed rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received comments from an individual regarding §68.104.

-The individual proposed modifying §68.104(b) to address potentially creating an exception for compliance with the entirety of section (a), not just (a)(3)(A).

-The individual also suggested that the sign required in §68.104(a)(3) should be installed so that bottom edge of the sign is no higher than 80 inches above ground level.

Department Response: The Department will address each of the individual’s comments separately.

-The Department agrees with the individual’s suggestion regarding §68.104(b) and has amended that subsection to address the inadvertent drafting error.

-The Department agrees with the individual’s suggestion to increase the maximum height for the bottom of the sign required by §68.104(a)(3). In order to ensure consistency with the requirements set in TAS, the Department has changed to §68.104(a)(3)(D).

Comment: The Department received a comment from an individual regarding the height for the sign required in §68.104(a)(3). The individual stated the sign should be a minimum of 60” above the finished floor or ground level and no higher than 80” above finished floor or ground level.

Department Response: The Department disagrees; the TAS prescribes a minimum height of 60 inches above the finish floor or ground surface for parking space identification signs. To accommodate the addition of the sign required by §68.104(a)(3), which is necessary to implement HB 3163, the signage must be placed below the current parking space identification sign required by TAS 502.6. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted a comment requesting that historical buildings be exempt from the proposed rules due to the negative economic impact imposed as a result of compliance.

Department Response: The Department disagrees; House Bill 3163 does not create an exemption from compliance. The Department has determined that the cost of compliance with the proposed rules will be minimal because building owners are currently required to comply with TAS requirements for parking spaces. Additionally, per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified after the effective date of the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: The Department received a comment from an individual generally in opposition to new rules. The individual stated that any additional costs affecting a church’s budget can be “a lot.”

Department Response: The Department disagrees. Per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the rules. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One individual submitted comments regarding the proposal. The individual did not object to the amendment in §68.100. Regarding §68.104, the individual stated that the rules create additional financial and compliance requirements for business owners and burden professionals practicing architecture and site development. The individual stated the only effective deterrent to illegal parking offenses is increased towing, not signage.

Department Response: The Department appreciates the individual’s comment regarding §68.100. The Department disagrees with the individual’s comments regarding §68.104. The Department has determined that the cost of compliance with the proposed rules will be minimal because building owners are currently required to comply with TAS requirements for accessible parking spaces. Additionally, per §469.003 of the Occupations Code, the proposed rules are not retroactive and will only apply to buildings that are registered to be newly constructed, renovated, or modified on or after the effective date of the rules. The Department did not make any changes to the proposed rules in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Elimination of Architectural Barriers Advisory Board met on June 15, 2020, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt proposed §68.100 as published in the Texas Register without changes; and adopt §68.104 as published in the Texas Register with changes to subsections (a)(1), (a)(2)(B), (a)(3)(D), and (b) in response to the public comments as explained in the Section-by-Section Summary. At its meeting on June 30, 2020, the Commission adopted the proposed rules as recommended by the Advisory Board.

STATUTORY AUTHORITY

The rules are adopted under Occupations Code, Chapters 51 and Government Code, Chapter 469, which authorize the Commission, 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 adoption are those set forth in Occupations Code, Chapters 51 and 1051, and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted rules.

§68.100. Technical Standards and Technical Memoranda.

(a) The Texas Commission of Licensing and Regulation adopts by reference the 2012 Edition of the Texas Accessibility Standards (TAS), effective March 15, 2012.

(b) The Texas Department of Licensing and Regulation may publish Technical Memoranda to provide clarification of technical matters relating to the Texas Accessibility Standards, if such memoranda have been reviewed by the Elimination of Architectural Barriers Advisory Committee.

§68.104. Accessible Parking Spaces.

(a) A paved accessible parking space must include:

(1) the International Symbol of Accessibility painted conspicuously on the surface in a color that contrasts the pavement;

(2) the words "NO PARKING" painted on any access aisle adjacent to the parking space. The words must be painted:

(A) in all capital letters;

(B) with a letter height of at least twelve inches, and a stroke width of at least two inches; and

(C) centered within each access aisle adjacent to the parking space; and

(3) a sign identifying the consequences of parking illegally in a paved accessible parking space. The sign must:

(A) at a minimum state “Violators Subject to Fine and Towing” in a letter height of at least one inch;

(B) be mounted on a pole, post, wall or freestanding board;

(C) be no more than eight inches below a sign required by Texas Accessibility Standards, 502.6; and

(D) be installed so that the bottom edge of the sign is no lower than 48 inches and no higher than 80 inches above ground level.

(b) A parking space identification sign that complies with Texas Accessibility Standards, 502.6, that includes the requirements in subsection (a)(3)(A) satisfies subsection (a)(3).

REVIEW BY AGENCY COUNSEL

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 July 10, 2020.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation