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To: Regulatory Compliance Division DirectorFrom: Lynn Latombe, General Counsel, Texas State Board of Plumbing ExaminersDate: July 18, 2022Subject: The Texas State Board of Plumbing Examiners (Board) proposes amendments to theexisting rules at 22 Texas Administrative Code (TAC), Chapter 365, §§365.19, 365.20, 365.21,and 365.22.The Texas State Board of Plumbing Examiners (Board) has proposed amendments to 22 TexasAdministrative Code (TAC), Chapter 365, §§ 365.19, 365.20, 365.21, and 365.22 as published inthe June 8, 2022 issue of the Texas Register. The proposed rules potentially affect marketcompetition and are submitted to the Regulatory Compliance Division for review. The PDFversion of the preamble and text of the proposed rule as published in the Texas Register, and thelanguage of any amendments to the proposed rule that the Texas State Board of PlumbingExaminers intends to adopt, are attached to this memorandum.To facilitate the Regulatory Compliance Division’s review of the proposed rule, the Texas StateBoard of Plumbing Examiners provides answers to the following questions.1. Briefly describe the proposed rules.The rule at §365.19 describes the minimum expectations for continuing professional educationand training course providers.The rule at §365.20 describes the minimum expectations for continuing professional educationand training instructors.The rule at §365.21 describes the minimum expectations for continuing professional educationand training programs for medical gas piping installation.The rule at §365.22 describes licensing procedures for military spouses, military servicemembers, and military veterans.2. What is the purpose of the proposed rules?The proposed rules implement changes to Texas Occupations Code, Chapter 1301 of the TexasOccupations Code (Plumbing License Law or PLL) as amended by House Bill 636 (HB 636), 87thTexas Legislature, Regular Session, 2021, Board efforts to improve regulation of the industry bysimplifying the rules as part of its four-year rule review, and to comply with Chapter 55 of theTexas Occupations Code.

The rule at §365.19 supports statutory changes instituted by HB 636 to establish minimumqualification for course and training providers. The rule further eliminates overly proscriptiverules regarding format, delivery, and class size as recommended by the Sunset Commission.The rule at §365.20 facilitate statutory requirements implemented by HB 636 to establishminimum qualifications for instructors of continuing professional education courses and trainingprograms.The rule at § 365.21 amends the current rule to include the successful completion of a nationcertification in medical gas installation to satisfy the continuing education requirement for thatendorsement. Further changes eliminate the requirement for a bound, physical copy of NFPA 99,as the NFPA is available and used digitally. Further language is eliminated to remove unnecessarylanguage and references, including (c)(3) which limited a course provider from marking up theprice of material purchased from the NFPA.The rule at § 365.22 facilitate statutory requirements in Chapter 55 of the Texas Occupations Codewhich requires state agencies to adopt certain rules relating to licensing military service members,military veterans, and military spouses. The current rule addresses only military spouses, theproposed rule will address licensing provisions for military service members, military veterans andmilitary spouses.3. Describe any relevant factual background to the proposed rule and the impetus for thestate agency to consider rulemaking.Amendments to Chapter 1301 of the Texas Occupations Code passed by the 87th Legislature,Regular Session (2021), specifically Sections 18 through 21 of HB 636, significantly impacted theBoard's continuing education and training programs. The amendments to the rules are proposed tosupport statutory changes and to do away with overly prescriptive requirements per the SunsetCommission's recommendations.As part of its four-year rule review of the existing rules at 22 Texas Administrative Code (TAC)Chapter 365, the Board initiated a rule simplification initiative to make the rules easier to use andunderstand by eliminating unnecessary language, adding clarifying language, restructuringregulations to make the rules more efficient, and reduce regulatory barriers. Unnecessary internalreferences to rule and statute have been eliminated to keep the rules current regardless of changesto statute and rule.4. Describe the legal authority for the proposed rule.Tex. Occ. Code § 1301.251(2), provides that the Board has a general rule-making authority to"adopt and enforce rules necessary to administer" Chapter 1301 of the Texas Occupations Code.Additionally, specific statutory change initiated by HB 636 amended §1301.404 and impacted§1301.405 to vest the authority for the administrative approval of continuing professionaleducation programs and instructors in the Executive Director rather than the Board. Chapter 55 ofthe Texas Occupations Code (Chapter 55) requires state licensing agencies recognize and processlicenses for military service members, military veterans, and military spouses.

a. Is the proposed rule specifically required or authorized by state statute? If so, list thestatute(s).Yes, Tex. Occ. Code § 1301.404 and §1301.405 requires the Board to adopt rules to establishminimum qualifications for instructors. Chapter 55 of the Texas Occupations Code requiresstate agencies to adopt rules to facilitate the recognition, licensing, and renewal of licenses foractive military members, military spouses, and veterans.b. Is the proposed rule within the scope of the state agency’s general authority toregulate in a given occupation or industry? If so, describe how the proposed ruleis within the scope, and reference the applicable state statute(s).Yes, Tex. Occ. Code § 1301.251(2), provides that the Board has a general duty to "adopt andenforce rules necessary to administer" Chapter 1301 of the Texas Occupations Code. Additionally,Tex. Occ. Code §§ 1301.404(a) and 1301.405(a-1) require the Board to adopt rules establishingminimum curriculum standards and instructor qualifications for continuing education and trainingprograms.5. Describe the process that the state agency followed in developing the proposed rule,including any public hearings held, public comments invited, studies conducted, and datacollected or analyzed.Draft continuing education rules were presented and discussed at the Continuing EducationProviders spring meeting on April 20, 2022. Comments and input from this meeting are reflectedin the proposed rules. The Texas State Board of Plumbing Examiners reviewed these rules at itsBoard meeting on May 24, 2022 and recommended them for posting in the Texas Register for 30days of public comment.6. Describe the harm that the proposed rule is intended to address and how the proposedrule will address the harm.The rules are not intended to address any harm; they are proposed merely to support the statutorychanges made by HB 636 and, in the case of §365.21, lower regulatory barriers to medical gasendorsement continuing education opportunities by allowing an additional opportunity forcontinuing education provided by accepting national certification as acceptable continuingeducation.7. Do any less restrictive alternatives to the proposed rule exist for addressing the same harm? Ifso, include a comparison of the proposed rule to the alternatives and a justification for notpursuing a less restrictive alternative. If no less restrictive alternatives exist, explain why.No.8. Indicate how the proposed rule affects market competition (See Section 57.105(d), TexasOccupations Code).

The Board does not anticipate that the rule amendments affect market competition any more thanthe existing legislative scheme laid out by the legislature. The rule at § 365.21 amends the currentrule to include the successful completion of a nation certification in medical gas installation tosatisfy the continuing education requirement for that endorsement. This rule lowers regulatoryburdens by allowing an alternative path for continuing education, thus expanding competition foreducation providers. Costs are further reduced by eliminating the requirement for a bound,physical copy of NFPA 99, as the NFPA is available and used digitally. Lastly, overly proscriptiveregulation is eliminated to remove unnecessary language and references, including (c)(3) whichlimited a course provider from marking up the price of material purchased from the NFPA.It creates a barrier to market participation in the state.It results in higher prices or reduced competition for a product or service provided by or to alicense holder in the state.It both creates a barrier to market participation in the state and results in higher prices orreduced competition for a product or service provided by or to a license holder in the state.9. Describe the specific impact that the proposed rule will have on market competition and howthat effect is consistent with state policy as established by the Legislature in state statute.The rules simply support statutory change and in instances reduce the burden on marketcompetition by eliminating over-proscriptive regulation and expanding opportunities forcontinuing education. That is consistent with state policy as established by the Legislature in statestatutes. Since continuing education has always been taught by licensees, no significant impact isexpected. Tex. Occ. Code § 1301.404 and §1301.405 requires the Board to adopt rules to establishminimum qualifications for instructors. By making sure instructors meet the same qualificationsas those they seek to instruct, the Board is ensuring that its licensees are receiving a minimumlevel of competent instruction from an instructor with experience and knowledge of the profession.10. Do the proposed rules relate to a question that is the subject of an opinion request pendingbefore the Office of the Attorney General? Does the proposed rule relate to an opinion previouslyissued by the Office of the Attorney General?No and No.11. Does the proposed rule relate to a matter on which there is pending litigation or a final courtorder?No.12. Is there anything else that the state agency would like the Regulatory Compliance Division toknow about the proposed rule?No.

Note: In addition to this memorandum and its required attachments, the state agency mustprovide copies of the state agency’s administrative records regarding the proposed rule,including any information or comments that the state agency received from the publicregarding the proposed rule. A state agency is not required to submit any privileged orconfidential information to the Regulatory Compliance Division.

[(b)] The presiding officer of the Board shall appoint the members of [the] committees. [Except as provided by subsection (c) of thissection, each committee member must be a member of the Board.][(c) The presiding officer may appoint only members of theagency staff to the Enforcement Committee whose duties will includefollowing the requirements of the APA, the Plumbing License Law andthe policies, guidelines and rules established by the Board and:][(1) investigating complaints or designating an employeeof the Board to investigate complaints;][(2) reviewing complaint investigations to determinewhether a violation of the Plumbing License Law or Board Rules hasoccurred;][(3) recommending the imposition of administrative penalties and issue notices of alleged violations;][(4)conducting informal conferences;][(5)negotiating proposed settlements;][(6)overseeing the preparation for contested cases;][(7) overseeing the issuance of cease and desist orders,criminal citations and the filing of injunctions; and][(8) reviewing applicants for examination, registration andlicensing who have a criminal conviction history affected by §363.15of the Board Rules.]The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authorityto adopt.Filed with the Office of the Secretary of State on June 24, 2022.TRD-202202373Lynn LatombeGeneral CounselTexas State Board of Plumbing ExaminersEarliest possible date of adoption: August 7, 2022For further information, please call: (512) 936-5215 CHAPTER 365. LICENSING ANDREGISTRATION22 TAC §§365.1, 365.5, 365.7, 365.8, 365.14, 365.15, 365.19- 365.25The Texas State Board of Plumbing Examiners (Board) proposesamendments to the existing rules at 22 Texas AdministrativeCode (TAC), Chapter 365, §§365.1, 365.5, 365.7, 365.8, 365.14,365.15 and 365.19 - 365.25, concerning licensing and registration. These proposed changes are referred to as "proposedrules."EXPLANATION OF AND JUSTIFICATION FOR THE RULESThe proposed rules implement changes to Texas Occupations Code, Chapter 1301 (Plumbing License Law or PLL) asamended by House Bill 636 (HB 636), 87th Texas Legislature,Regular Session, 2021, Board efforts to improve regulation ofthe industry by simplifying the rules as part of its four-year rulereview, and to comply with Chapter 55 of the Texas OccupationsCode.Implementation of HB 636HB 636 amended the Plumbing License Law. Statutory changeseliminated the requirement that a responsible master plumber(RMP) complete an approved training program regarding thelaws and rules applicable to the operation of a plumbing business in Texas. HB 636 added a qualification path for licensureas a Tradesman-Limited Plumber upon successful examinationand completion of a career and technology education programoffered by a high school or institution of higher education approved by State Board of Education and the Board. Instructors for the new career and technology program are requiredto be licensed by the Board as a master plumber, journeymanplumber, or plumbing inspector. Instructors providing meaningfulinstruction are allowed to complete hours of continuing professional education every three years under Section 1301.404 asamended by HB 636. HB 636 further amended Section 1301.404to vest the authority for the administrative approval of continuingprofessional education programs and instructors in the Executive Director rather than the Board. HB 636 amended Section1301.304 to move the responsibility to investigate violations ofthe PLL or rules from the Enforcement Committee to the Board,or a Board-designated employee. HB 636 removed the ability offield representatives to issue citations, and created a non-renewable, 30-day temporary license for applicants meeting the qualifications for such licensure established in rule. The proposedrules facilitate the statutory changes made by HB 636.Rule Review ChangesThe Board, under it general rule-making authority in Section1301.251 of Texas Occupations Code and part of its four-yearrule review of the existing rules at 22 Texas Administrative Code(TAC) Chapter 365, initiated a rule simplification initiative tomake the rules easier to use and understand by eliminatingunnecessary language, adding clarifying language, and restructuring regulations to make the rules more efficient. Unnecessaryinternal references to rule and statute have been eliminated tokeep the rules current regardless of changes to statute and rule.Implementation of Chapter 55 of the Texas Occupations CodeChapter 55 of the Texas Occupations Code requires state agencies to adopt certain rules relating to licensing military servicemembers, military veterans, and military spouses. The proposedrule at 365.22 amends the current rule, which addresses onlymilitary spouses, to include military service members, militaryveterans, and military spouses.SECTION BY SECTION SUMMARYSection 365.1 The proposed rule makes non-substantivechanges to the current rule to eliminate unnecessary languageand references to simplify the rule.Section 365.5 The proposed rule makes non-substantivechanges to the current rule to simply re-words and re-structuresthe requirements for renewal in an effort to make it easier toread.Section 365.7 The proposed rule makes non-substantivechanges to the current rule to eliminate an unnecessary reference.Section 365.8 The proposed rule consolidates Subsection (d)into (a) of the current rule to show a licensee or registrant mustinform the Board of a change of physical address and legal namechange to make the rule more efficient and easier to read. It alsomakes a new requirement that the Board be notified of a changein email address.PROPOSED RULESJuly 8, 202247 TexReg 3875

Section 365.14 The proposed rule changes the rule headingto "Continuing Professional Education and Training Requirements." It further adds "as applicable" to subsection (c) to clarifythat continuing education and training can be taken in person,via correspondence, or virtually.Section 365.15 The proposed rule eliminates references to a"publisher" of course material. The Board earlier repealed regulation of publishers. HB 636 moved the administrative approvalof continuing education from the Board to the Executive Director.Further language is eliminated to streamline the rule and clarifythat the Executive Director will approve both continuing professional education and training courses. Lastly, a clarification in (c)shows that course material is approved for two years from theirstated effective date, or the date they are approved, whicheveris later.Section 365.19 The proposed rule eliminates references toBoard approval of courses or training. Under HB 636, the Executive Director facilitates the administrative approval of coursesand instructors. Furthermore, the proposed rule eliminatesoverly proscriptive rules regarding class format, delivery, andclass size as was recommended by the Sunset Commission.The proposed rule requires that courses and training segmentsare required to be at least one hour in length. The proposedrule gives notice that providers may incorporate materials orpresentations by manufacturing vendors, but only educationaland informative portions will be given credit. The proposed rulerequires that an education provider offer to refund or reschedulethe course should the original course be cancelled. The ruleexpands the time frame a provider will provide a certificate ofcompletion to the student from forty-eight (48) hours to withinthree (3) business days after successful course completion.Section 365.20 The proposed rule sets the minimum qualifications for instructors of continuing education courses and training programs, eliminates overly proscriptive language as recommended by the Sunset Commission, and facilitates the standards under which the Executive Director will approve instructors as mandated by HB 636. It requires an instructor must bea journeyman, master, or plumbing inspector in good standing.An instructor teaching an endorsement course must hold thatendorsement. Instructors must teach approved material and report course completion within three (3) business days after thecourse is complete. The requirement that an instructor completethe Course Instructor Certification Workshop is eliminated.Section 365.21 The current rule provides that continuing education for a medial gas piping endorsement must have two hoursof CPE. The rule proposal amends the rule to include that thesuccessful completion of a national certification in medical gasmay also satisfy the continuing education requirement for thatendorsement. Further changes eliminate the requirement for abound, physical copy of NFPA 99, as the NFPA is available andused digitally. Further language is eliminated to remove unnecessary language and references, including (c)(3) which prohibited a course provider from marking up the price of material purchased from the NFPA.Section 365.22 Chapter 55 of the Texas Occupations Coderequires state agencies to adopt certain rules relating to licensing military service members, military veterans and militaryspouses. The current rule addresses only military spouses; theproposed rule expands the opportunity for licensure to militaryservice members, military veterans, and military spouses.47 TexReg 3876July 8, 2022Texas RegisterSection 365.23 Section 1301.406 of the PLL allows for the transfer of a license held for 35 consecutive years. The current ruleat 365.23(a) is inconsistent with statute; therefore, the proposedrule eliminates the provision inconsistent with statute. The remaining changes simply eliminate unnecessary language andreferences to improve readability.Section 365.24 The proposed rule allows instructors whoteach the alternative option for becoming a Tradesman-LimitedPlumber at a high school or institute of higher education theability to renew their license by completing six hours of continuing education at least every three years, if they provide at least18 hours of instruction annually. This provision facilitates therequirement in HB 636 which amended 1301.407(g).Section 365.25 The proposed rule supports the temporary, nonrenewable, 30-day licenses created by HB 636. This rule showsthat this license may be granted in conditions of disaster as declared by the Governor or determined by the Executive Director.FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTLisa G. Hill, Executive Director for the Board (Executive Director), has determined that for the first five-year period the proposed rules are in effect, there are no foreseeable increases orreductions in costs to the state or local governments as a resultof enforcing or administering the rules. The Executive Directorhas further determined that for the first five-year period the proposed rules are in effect, there will be no foreseeable losses orincreases in revenue for the state or local governments as a result of enforcing or administering the rules.PUBLIC BENEFITSThe Executive Director has determined that for each of the firstfive years the proposed rules are in effect, the public benefitanticipated as a result of enforcing or administering the proposed rules will be to have fewer regulatory barriers to licensureand greater opportunity to expand the population of licensedplumbers. Regulatory efficiency is enhanced by supportingapproval of continuing professional education courses andinstructors by the Executive Director. Enhanced regulatoryefficiency is also realized by removing a course requirement onresponsible master plumbers.PROBABLE ECONOMIC COSTS TO PERSONS REQUIREDTO COMPLY WITH THE RULEThe executive director has determined that for the first five yearsthe proposed rules are in effect, there are no substantial economic costs anticipated to persons required to comply with theproposed rules.ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCALIMPACTGiven that the proposed rules do not have a fiscal note whichimposes a cost on regulated persons, including another stateagency, a special district, or local government, proposal andadoption of the rules is not subject to the requirements of Government Code §2001.0045.GOVERNMENT GROWTH IMPACT STATEMENTFor each of the first five years the proposed rules are in effect,the Board has determined the following: (1) the proposed rulesdo not create or eliminate a government program; (2) implementation of the proposed rules do not require the creation of newemployee positions or the elimination of existing employee positions; (3) implementation of the proposed rules do not require an

increase or decrease in future legislative appropriations to theagency; (4) the proposed rules do not require an increase or decrease in fees paid to the agency; (5) the proposed rules do notcreate a new regulation; (6) the proposed rules do not expand,limit, or repeal an existing regulation; (7) the proposed rules donot increase or decrease the number of individuals subject to therules' applicability; and (8) the proposed rules do not positivelyor adversely affect this state's economy.LOCAL EMPLOYMENT IMPACT STATEMENTNo local economies are substantially affected by the proposedrules. As a result, preparation of a local employment impactstatement pursuant to Government Code §2001.022 is not required.FISCAL IMPACT ON SMALL AND MICRO-BUSINESS, ANDRURAL COMMUNITIESThe proposed rules will not have an adverse effect on small ormicro-businesses, or rural communities because there are nosubstantial economic costs anticipated to persons required tocomply with the proposed rules. As a result, preparation of aneconomic impact statement and a regulatory flexibility analysis,as provided by Government Code §2006.002, are not required.TAKINGS IMPACT ASSESSMENTThere are no private real property interests affected by the proposed rules. As a result, preparation of a takings impact assessment, as provided by Government Code §2007.043, is notrequired.PUBLIC COMMENTSWritten comments regarding the amended rule may be submitted by mail to Patricia Latombe at P.O. Box 4200, Austin, Texas78765-4200, or by email to rule.comment@tsbpe.texas.gov withthe subject line "Rule Amendments." All comments must be received within 30 days of publication of this proposal.STATUTORY AUTHORITYThis proposal is made under the authority of Texas OccupationsCode Chapter 1301 as amended by HB 636 during the 87th Legislative Session. Section 1301.251(2) of the Texas OccupationsCode authorizes the Texas State Board of Plumbing Examinersto adopt rules as necessary to implement the Chapter. The proposal is also proposed under the authority of Chapter 55 of theTexas Occupations Code which requires state agencies to adoptcertain rules relating to licensing military service members, military veterans, and military spouses. No other statutes, articles,or codes are affected by the proposed rules.§365.1. License, Endorsement and Registration Categories; Scope ofWork Permitted.(a) [Pursuant to §1301.002 and §1301.351 of the Plumbing License Law and §361.1 of the Board Rules, the] The scope of plumbingwork that an individual may perform is dictated by the type of license,endorsement, or registration [or combination thereof] held [by the individual].(b) An individual who holds a current Master Plumber Licenseand meets the requirements of a Responsible Master Plumber (RMP)[under §1301.3576 of the Plumbing License Law and §367.3(a) of theBoard Rules]:(1) may advertise or otherwise offer to perform or provideplumbing to the general public;(2) may enter into contracts or agreements to performplumbing;(3) shall obtain plumbing permits to perform plumbingwork;(4) may perform plumbing work without supervision; and(5) shall supervise plumbing work performed by other licensees or registrants.(c) An individual who holds a current Journeyman or MasterPlumber License may perform or supervise plumbing work:(1) under the supervision of a RMP; and(2) only under contracts or agreements to perform plumbing work secured by a RMP or a person who has secured the servicesof a RMP [in accordance with §367.3(a)(2) of the Board Rules].(d) An individual who holds a current Tradesman PlumberLimited License may:(1) perform or supervise plumbing work on one or twofamily dwellings:(A) under the supervision of a RMP; and(B) only under contracts or agreements to performplumbing secured by a RMP or a person who has secured the servicesof a RMP [in accordance with §367.3(a)(2) of the Board Rules]; or(2) assist in the installation of plumbing other than for oneor two-family dwellings under the on-the-job supervision of a Journeyman or Master Plumber.(e) An individual who holds a current Plumbing Inspector License may perform plumbing inspections as an employee or independent contractor of a political subdivision or state agency for compliancewith health and safety laws and ordinances.(1) An individual who holds a current Plumbing InspectorLicense with a current Medical Gas Piping Installation Endorsementmay perform inspections of piping that is used solely to transport gasesused for medical purposes.(2) An individual who holds a current Plumbing InspectorLicense with a current Water Supply Protection Specialist Endorsementmay perform inspections of plumbing work associated with the treatment, use and distribution of rainwater to supply a plumbing fixture,appliance, or irrigation system.(3) An individual who holds a current Plumbing Inspector License with a current Multipurpose Residential Fire ProtectionSprinkler Specialist Endorsement may perform inspections of multipurpose residential fire protection sprinkler systems installed in a oneor two-family dwelling.(f) An individual who holds a current Journeyman or MasterPlumber License with a current Medical Gas Piping Installation Endorsement may install piping that is used solely to transport gases usedfor medical purposes:(1) under the supervision of a RMP who holds a currentMedical Gas Piping Installation Endorsement; and(2) only under contracts or agreements to perform medicalgas piping installations secured by a RMP who holds a current Medical Gas Piping Installation Endorsement or a person who has securedthe services of a RMP[, in accordance with §367.3(a)(2) of the BoardRules,] who holds a current Medical Gas Piping Installation Endorsement.PROPOSED RULESJuly 8, 202247 TexReg 3877

(g) An individual who holds a current Journeyman or MasterPlumber License with a current Water Supply Protection Specialist Endorsement may:(1) perform Customer Service Inspections pursuant to 30Texas Administrative Code [Tex. Admin. Code] §290.46(j). MinimumAcceptable Operating Practices for Public Drinking Water Systems; or(2) install, service or repair plumbing associated with thetreatment, use and distribution of rainwater to supply a plumbing fixture, appliance, or irrigation system:(A) under the supervision of a RMP who holds a currentWater Supply Protection Specialist Endorsement; and(B) only under contracts or agreements to perform, install, service, and repair plumbing associated with the use and distribution of rainwater to supply a plumbing fixture, appliance, or irrigationsystem secured by a RMP who holds a current Water Supply ProtectionS

The Texas State Board of Plumbing Examiners (Board) has proposed amendments to 22 Texas Administrative Code (TAC), Chapter 365, §§ 365.19, 365.20, 365.21, and 365.22 as published in the June 8, 2022 issue of the Texas Register. The proposed rules potentially affect market competition and are submitted to the Regulatory Compliance Division for .

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