Justification for Adoption of Administrative Rules

JUSTIFICATION FOR EMERGENCY RULE ADOPTION
Electricians
16 Texas Administrative Code, amendments to Chapter 73, §73.100.

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule on an emergency basis at 16 Texas Administrative Code (TAC), Chapter 73, §73.100, Technical Requirements, regarding delaying the applicability of Section 210.8(F) of the 2020 National Electrical Code. The effective date for this emergency rule is May 20, 2021.

EXPLANATION OF AND JUSTIFICATION FOR THE EMERGENCY RULE

The rules under 16 TAC Chapter 73, Electricians, implement Texas Occupations Code, Chapter 1305, Electricians.

Pursuant to Occupations Code, Chapter 1305, §1305.101(a)(2), the Commission is required to adopt the National Electrical Code (NEC) every three years “as the electrical code for the state.” The Commission has adopted the 2020 NEC in its entirety by rule at 16 TAC, Chapter 73, §73.100, Technical Requirements. Section 90.4 of the 2020 NEC authorizes the Department to waive specific code requirements when doing so will not have a negative impact on safety.

Section 210.8(F) of the 2020 NEC requires certain outdoor outlets to have ground-fault circuit-interrupter (GFCI) protection. An incompatibility between most GFCI products on the market and certain types of air-conditioning and heating equipment has resulted in that equipment failing by persistently tripping circuit breakers. The approaching summer heat poses a serious threat to Texas residents whose air-conditioning systems have failed or are malfunctioning. Adopting the emergency rule would help keep Texas residents safe by ensuring installed air-conditioning systems are not subject to failure due to equipment incompatibility. Additionally, the Department’s technical experts have confirmed that adopting the emergency rule would not have a negative impact on safety.

In short, the continued application of Section 210.8(F) of the 2020 NEC presents an imminent peril to the public health, safety, or welfare requiring adoption of the emergency rule on fewer than 30 days' notice.

SECTION BY SECTION SUMMARY

The emergency rule amends §73.100 by placing the existing rule text into new subsection (a) and adding new subsection (b) to state that compliance with Section 210.8(F) of the 2020 NEC is not required until January 1, 2023. It is widely expected that manufacturers of both electrical and air conditioning equipment will have resolved the compatibility issues by this date, at which point the danger to Texas residents will subside.

COMMISSION ACTION

At its meeting on May 18, 2021, the Commission adopted the emergency rule without changes as recommended by the Department.

FUTURE RULEMAKING

Under Texas Government Code §2001.034, the emergency rule may be effective for 120 days, and may be renewed once for an additional 60 days. The Department may propose this or a similar rule under the normal rulemaking process and will consider any additional action necessary in the event unforeseen issues arise with the adopted section.

STATUTORY AUTHORITY

The emergency rule is adopted with abbreviated or no notice and with an expedited effective date under Texas Government Code §2001.034(a) and §2001.036(a)(2).

The emergency rule is adopted under Texas Occupations Code, Chapters 51 and 1305, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement those chapters.

The statutory provisions affected by the emergency rule are those set forth in Texas Occupations Code, Chapters 51 and 1305. No other statutes, articles, or codes are affected by the emergency rule.

§73.100. Technical requirements.

(a) Effective November 1, 2020, the department adopts the 2020 National Electrical Code as approved by the National Fire Protection Association, Inc. on August 25, 2019.

(b) Notwithstanding subsection (a), compliance with Section 210.8(F) of the 2020 National Electrical Code is not required until January 1, 2023.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the emergency 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 May 20, 2021.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation