Proposed Administrative Rules

Chapter 75. Air Conditioning and Refrigeration
Proposal Filed: October 25, 2019 – Published in the Texas Register: November 8, 2019
Deadline for Public Comment: December 9, 2019.

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The Texas Department of Licensing and Regulation (Department) proposes a new rule at 16 Texas Administrative Code (TAC), Chapter 75, §75.75, regarding the Air Conditioning and Refrigeration program (the “proposed rule”).

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC Chapter 75 implement Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors.

The proposed rule is necessary to implement House Bill (HB) 1342, 86th Legislature, Regular Session (2019). Section 2 of HB 1342 authorizes the Texas Commission of Licensing and Regulation (“Commission”) and the Department’s Executive Director to issue a restricted license to a person as an alternative to denying, revoking, suspending, or refusing to issue a license. Section 2 also authorizes the Department to impose reasonable conditions on a holder of a restricted license. Notably, a restricted license may only be issued to applicants within the Department’s Air Conditioning and Refrigeration (Texas Occupations Code, Chapter 1302) and Electricians (Texas Occupations Code, Chapter 1305) programs.

The proposed rule requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. Additionally, the proposed rule requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. Lastly, the proposed rule requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work.

SECTION-BY-SECTION SUMMARY

The proposed rule contains three subsections. Proposed rule §75.75(a) requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. A holder of a restricted license who does not comply with the terms of a restricted license may be subject to an administrative penalty or other sanction as allowed by Texas Occupations Code, Chapter 51.

Proposed rule §75.75(b) requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. This subsection simply restates Texas Occupations Code §51.357(d) as enacted by HB 1342.

Proposed rule §75.75(c) requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work under that license. Potential conditions that could be imposed by the Commission or Executive Director pursuant to Texas Occupations Code §51.357(b) are that the license holder be subject to close supervision, or be allowed to work in only nonresidential settings. Because HB 1342 and proposed rule §75.75(b) require supervisors to use care to ensure that persons under their supervision with restricted licenses comply with the terms of licensure, it is reasonable that licensees be required to inform their employers of those conditions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there may be a slight revenue gain, as there could be individuals who will obtain a restricted license who would not have obtained a license previously. However, the number of individuals who will obtain a restricted license cannot be estimated, and therefore any revenue gain also cannot be estimated.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of local governments. 

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be a possible increase in the number of licensed air conditioning and refrigeration contractors and technicians. The rule may allow persons with past criminal convictions to become employed as licensed air conditioning and refrigeration contractors or technicians.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there may be additional costs to persons who are required to comply with the proposed rule. Because existing licensees will be required by the proposed rule (and by HB 1342) to ensure that persons under their supervision comply with the terms of a restricted license, there may be negligible costs involved for the supervising licensees. Any cost the supervising licensee may incur cannot be estimated, however. Additionally, no licensee will be required to take on supervision of a restricted licensee, so this cost is optional.

Restricted licensees will be required to comply with the conditions imposed by the Commission or Executive Director, but these conditions should not impose a cost.

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

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

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

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

  1. The proposed rule does not create or eliminate a government program.
  2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
  3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.
  4. The proposed rule does not require an increase or decrease in fees paid to the agency.
  5. The proposed rule does create a new regulation. Proposed rule §75.75 is a new rule. However, the rule is required by HB 1342.
  6. The proposed rule does not expand, limit, or repeal an existing regulation.
  7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.
  8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule does not restrict, limit, or impose a burden on an owner’s rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 1302, which authorize the Texas Commission of Licensing and Regulation, 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. Texas Occupations Code §51.357, as enacted by HB 1342, also provides a basis for the proposed rule.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51 and 1302. No other statutes, articles, or codes are affected by the proposed rule.

§75.75. Restricted Licenses.

(a) A person issued a restricted license in accordance with Texas Occupations Code, Chapter 51, Subchapter G, shall comply with any condition imposed by the commission or executive director.

(b) A licensee shall use reasonable care to ensure that the holder of a restricted license subject to the licensee’s supervision complies with any condition imposed by the commission or executive director.

(c) Before performing any work, the holder of a restricted license must inform his or her employer of the conditions placed on the license.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.

Filed with the Office of the Secretary of State, on October 25, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation