Proposed Administrative Rules

Chapter 83. Cosmetologists
Proposal Filed: July 20, 2020 – Published in the Texas Register: July 31, 2020
Deadline for Public Comment: August 31, 2020

Underlined text is new language.
[ Strikethrough text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 83, §83.72, Responsibilities of Beauty Culture Schools, regarding the Cosmetology Program. These proposed changes are referred to as the “proposed rule.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC, Chapter 83, implement Texas Occupations Code, Chapter 1602, Cosmetologists, and Chapter 1603, Regulation of Barbering and Cosmetology.

On February 18, 2020, the Texas Commission of Licensing and Regulation (Commission) adopted amendments to Chapter 83 to implement necessary changes as required by House Bill (HB) 2847, 86th Legislature, Regular Session (2019), and recommendations from the Cosmetology Advisory Board's workgroups to reduce regulatory burdens and provide more clarity to the industry by using updated and standardized terminology. Section 83.72 was one of the rules amended by that rulemaking, and the section was amended effective March 15, 2020.

Due to a clerical error, the amended text of §83.72 incorporated into the Texas Administrative Code is not the text that was published in the January 3, 2020, issue of the Texas Register (45 TexReg 42) and adopted by the Commission on February 18, 2020. As a result, incorrect requirements are present in the currently published text of §83.72. As a short-term solution to protect the public health, safety, and welfare, the Commission adopted an emergency rulemaking on June 30, 2020, to correct the errors present in the text of §83.72. This emergency rule was published in the July 10, 2020, issue of the Texas Register (45 TexReg 4595).

The proposed rule amends §83.72 in a manner identical to the June 30, 2020, emergency rulemaking. The amendments correct errors in the text of §83.72(w)(9)-(10), reverting the requirements for Beauty Culture Schools offering the esthetician and manicurist curriculum standards to those in place prior to the March 15, 2020, changes to the section.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §83.72 by reversing changes to the equipment requirements for Beauty Culture Schools offering the esthetician curriculum standards (§83.72(w)(9)) and the manicurist curriculum standards (§83.72(w)(10)).

For the esthetician curriculum standards, subsections §83.72(w)(9)(B)-(J) are amended to reflect the equipment requirements in place prior to the March 15, 2020, changes to the section. These changes remove unnecessary equipment related to other cosmetology curricula and include appropriate equipment for instruction of the esthetician curriculum standards.

For the manicurist curriculum standards, subsections §83.72(w)(10)(A)-(J) are amended to reflect the equipment requirements in place prior to the March 15, 2020 changes to the section. These changes remove unnecessary equipment related to other cosmetology curricula and include appropriate equipment for instruction of the manicurist curriculum standards.

The amendments in the proposed rule represent a revision to the equipment requirements previously in place for the version of §83.72 effective January 15, 2018 (43 TexReg 81), until March 15, 2020. In the pre-March 15, 2020, version of the rule, the subsections were numbered §83.72(w)(10)-(11).

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

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 state or local governments. The proposed rule will not impact TDLR’s costs or fees paid to the agency. Additionally, local governments are not responsible for enforcing or administering the proposed rule.

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. The proposed rule will not affect the number of licensed cosmetologists or the number of cosmetology schools.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be ensuring public safety and welfare by returning the school equipment requirements to those that have been determined to allow esthetician and manicurist students to learn to safely perform those services. Additionally, correcting the two subsections will prevent confusion for schools and unnecessary expenditures on the wrong equipment.

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 are no anticipated economic costs to persons who are required to comply with the proposed rule. The clerical errors present in the version of §83.72 effective March 15, 2020, were not publicized by the Department, and the Commission adopted an emergency rule to remedy the errors on June 30, 2020. It is doubtful any schools which offer esthetician or manicure education made any changes to the equipment they held on hand following the March 15, 2020, rule amendments. Since schools likely did not discard the equipment they previously owned for the esthetician and manicurist curriculum standards, no new costs will be imposed.

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

There will be no adverse economic 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 not create a new regulation.

6. The proposed rule does expand, limit, or repeal an existing regulation. The proposed rule change amends current Subsections §83.72(w)(9)-(10), reverting the text to the previous subsections the currents ones replaced.

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 electronically on the Department’s website at https://ga.tdlr.texas.gov:1443/form/gcerules ; by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. 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, 1602, and 1603, 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.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51, 1602, and 1603. No other statutes, articles, or codes are affected by the proposed rule.

§83.72 Responsibilities of Beauty Culture Schools.

(a) - (v) (No change.)

(w) Beauty culture schools must have a classroom separated from the laboratory area by walls extending to the ceiling and equipped with the following equipment to properly instruct students enrolled at the school:

(1) - (8) (No change.)

(9) If offering the esthetician curriculum standards the following equipment must be available in adequate number for student use:

(A) facial chair or bed;

(B) lighted magnifying glass [ heat processor, hand-held hair dryer, heat cap, or therapeutic light ];

(C) woods lamp [ cold wave rods ];

(D) dry sanitizer [ thermal iron (electric or non-electric) ];

(E) steamer machine [ styling station covered with a non-porous material that can be cleaned and disinfected, with mirror and styling chair (swivel or hydraulic) ];

(F) brush machine for cleaning [ mannequin with sufficient hair, with table or attached to styling station ];

(G) vacuum machine [ professional hand clippers ];

(H) high frequency machine for disinfection, product penetration, stimulation [ professional hand held dryer ];

(I) galvanic machine for eliminating encrustations, product penetration [ manicure table and stool ];

(J) paraffin bath and paraffin wax [ facial chair or bed ];

(K) mannequin head; and

(L) wet disinfectant soaking containers, large enough to fully immerse tools and implements.

(10) If offering the manicure curriculum standards the following equipment must be available in adequate number for student use:

(A) an autoclave, dry-heat sterilizer or ultra-violet sanitizer [ facial chair ];

(B) complete manicure table with light [ lighted magnifying glass ];

(C) client chair [ woods lamp ];

(D) student stool or chair [ dry sanitizer ];

(E) whirlpool foot spa or foot basin [ steamer machine ];

(F) electric nail file [ brush machine for cleaning ];

(G) UV light curing system [ vacuum machine ];

(H) paraffin bath and paraffin wax [ high frequency machine for disinfection, product penetration, stimulation ];

(I) air brush system; and [ galvanic machine for eliminating encrustations, product penetration; ]

(J) wet disinfectant soaking containers. [ paraffin bath and paraffin wax; ]

(11) - (12) (No change.)

(x) (No change.)

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 July 20, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation