Architectural Barriers Adopted Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Elimination of Architectural Barriers
16 TAC Chapter 68
§§68.10, 68.30, 68.31, 68.50, 68.65, 68.74, 68.76, 68.80, 68.100, 68.101, and 68.102; and the repeal of §68.103 and §68.104

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code, (TAC) Chapter 68, §§68.10, 68.30, 68.31, 68.50, 68.65, 68.74, 68.76, 68.80, 68.100, 68.101, and 68.102 and the repeal of §68.103 and §68.104, regarding the Elimination of Architectural Barriers program as published in the September 2, 2011, issue of the Texas Register (36 TexReg 5584), without changes. The adoption takes effect March 15, 2012.

The amendments and repeals align current rules with federal law by adopting the 2012 edition of the Texas Accessibility Standards, and complies with House Bill (HB) 1055, 81st Legislature, Regular Session (2009) which extended the time frame for design professionals to have documents printed. A summary of the proposed amendments and repeals were included in the notice of proposed rules published in the September 2, 2011, issue of the Texas Register (36 TexReg 5584).

The Department drafted and distributed the proposed amendments and repeals to persons internal and external to the agency. The proposed amendments and repeals were published in the Texas Register on September 2, 2011. The 30-day public comment period closed on October 3, 2011. The Department also publically posted the 2012 Texas Accessibility Standards (TAS) on its website and referenced the posting in the published rule filing with Texas Register. The Department received public comments from 21 interested parties on the 2012 TAS and the proposed rules: Accessibility Professionals Association (APA); Bureau Veritas North America, Inc.; City of Waco; Chesney Morales Architects and Associates, Inc.; GSC Architects; English Architects; K+K Associates, LLP; KSQ Architects, PC; Abadi Accessibility; Accessibility Check; The Access Partnership, LP; Code Consulting Group; Garza Bomberger and Associates; American Construction Investigations, Ltd.; The National Floor Safety; KAHickman Architects and Interior Designers; American Construction Investigations; Kitter and Pate Design Associations; and 3 individuals.

On October 13, 2011, the Architectural Barriers Advisory Committee met to review public comments and recommended no changes to the proposed rules in response to comments received. The public comments are summarized below, followed by the Department’s responses.

Three commenters requested that the exemptions for Path of Travel and Safe Harbor as provided in 28CFR35.151(b)(4)(ii)(C) and 28CFR36.403(a)(2) and 28CFR36.403(d) be added to the 2012 TAS.

Department Response: The Department added a definition in section 106 of the 2012 TAS that provides a definition for Safe Harbor and provides scoping in section 202.4 of the 2012 TAS. The text is based on the Code of Federal Regulations §35.151(b)(4)(ii)(C) and §36.403(a)(2) for Path of Travel.

One commenter expressed concerns about how safe harbor will affect large facilities such as hotels that have golf courses and swimming pools in terms of having to bring their facilities into compliance with the 2102 TAS or 2010 SAD by March 15, 2012.

Department Response: Safe harbor is applicable only to the path of travel elements and if those elements are in compliance with the 1994 TAS, they would not be required to bring them into compliance with the 2012 TAS until there is construction since the Texas Architectural Barriers Act is a construction law. However, the owners will still have an obligation to comply with the 2010 SAD and safe harbor is not applicable to elements such as golf courses and swimming pools; therefore, when they do construction to meet their federal obligations, this will also require compliance with the 2012 TAS. Safe harbor is referenced in the 2012 TAS in section 106.5.57 Definitions and 202.4 Alterations Affecting Primary Function Areas.

One commenter requested the Department incorporate or alter various sections of the 2012 TAS to reflect similar language in the proposed federal Guidelines for Public Rights-of-Way.

Department Response: As the referenced federal guidelines are not yet an enforceable standard, the Department will continue to address public right-of-way projects in 16 TAC §68.102.

One commenter recommended that the graphics on the cover page of the draft 2012 TAS be revised to indicate that the 2012 TAS = 2010 Standards. The APA requested the reference to “2010 SAD” on the cover page be substituted with “2010 Standards”.

Department Response: As the reference to the federal standards on the draft 2012 TAS were added for illustrative purposes only and will not be included in the final document, no action is necessary.

One commenter commented on §105 of the 2012 TAS and requested the Department provide copies of all of the reference standards for inspection at offices throughout the State and guidance added to the RAS procedures regarding the onsite inspection process for each of the referenced codes. They also requested that the Department require and ensure the availability of adequate continuing education training on the referenced standards.

Department Response: The Department will include direction in the new Texas Accessibility Academy sufficient to satisfy compliance with the 2012 TAS.

One commenter suggested that the Department improve the definition of Circulation Path in 2012 TAS §106.5.19 to be consistent with the definition in ANSI A117.1 and to add an advisory note to clarify that requirements regarding protruding object hazards apply to any area a visually impaired person may travel.

Department Response: The Department has provided the identical definition of Circulation Path as defined in the federal 2010 Standards. No change is necessary.

One commenter suggested that the Department improve the definition of Curb Ramp in 2012 TAS §106.4.23 [assumed to ref. §106.5.23] to be consistent with Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way, published July 26, 2011.

Department Response: The Department has provided the identical definition of Curb Ramp as defined in the federal 2010 Standards. The Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way are not enforceable. No change is necessary.

One commenter questioned if there will be an area of religious ritual exemption added to the 2012 Texas Accessibility Standards.

Department Response: The Department considers the exemption in §68.30(8) as sufficient.

One commenter requested clarification of the meaning of the effective date for compliance to the 2012 TAS. Does it mean submitted for permit review, permitted for construction, or finished construction (certificate of occupancy)?

Department Response: The Department has proposed an effective date of March 15, 2012. The applicability of the 2012 TAS for new construction or alterations will be based on the date the last application for a building permit or permit extension is certified to be complete by a state, county or local government; or the date the last application for a building permit or permit extension is received by a state, county, or local government, where the government does not certify the completion of applications; or the commencement of construction or alterations, if no permit is required. Furthermore, the Department agrees to monitor applicability issues as they arise and address them as is appropriate.

One commenter inquired about whether a project permitted on March 11, 2012, would be under the 1994 TAS standard?

Department Response: The Department policy would consider when the project was permitted, constructed, renovated, or modified prior to March 15, 2012, to determine the applicability of the appropriate standards. Given the example, it would likely be under the 1994 TAS. However, the Department will take this policy consideration under advisement and determine the appropriate application as cases arise.

One commenter inquired about TDLR methods of notifying the design professionals of the 2012 TAS and effective dates in regards to permitting.

Department Response: The Department will contact the licensing agencies such as TBAE, TPBE, and BOMA and also broadcast electronic Department listserv messages which are some of the outreach resources and tools used to inform design professionals.

One commenter inquired about government projects that have already been registered and reviewed but may not get funded or started before March 15, 2012, and whether they will be allowed to use the 1994 TAS or required to use the 2012 TAS.

Department Response: Public projects are also required to comply with federal requirements and may need to comply with the strictest standard.

One commenter asked whether the permit process means that one has been filed or one has been issued?

Department Response: The Department welcomes input from the association about different scenarios that may occur and will address them on the Department’s Frequently Asked Questions (FAQ) page on the Department’s website.

One commenter expressed opinion that registering a project and acquiring a TDLR number is similar to permitting.

Department Response: If TDLR allows a project to be constructed under the 1994 TAS solely because of project registration, this could result in conflict with federal requirements.

One commenter asked whether there would be a transition period where it will be allowed to be designed under 2012 TAS before March 15, 2012.

Department Response: That concept was discussed at other meetings and may be considered as a variance. The Department will monitor the situation.

One commenter proposed to retain the exception for fire stations in 16 TAC §68.104.

Department Response: The 2012 TAS makes reference to employee workspace which would include the areas previously exempted by §68.104, and believes the new 2012 TAS will sufficiently address the requirements; however, the Department will consider a Technical Memorandum addressing this matter should the need arise.

One commenter suggested that the Department include 28 CFR 36.406(b) that clarifies advisory notes, appendix notes, and figures are not enforceable, and suggested the Department include any items in the advisory text that should be requirements in the 2012 TAS.

Department Response: The Department added this provision in §201.1 of the 2012 TAS.

One commented suggested the Department clarify whether a variance is required to use a platform lift [ref. §410] where existing side constraints appear to prohibit the use of a ramp or elevator.

Department Response: The Department will add the word “technically” in TAS §206.7.5 before “infeasible”.

One commenter proposed additional text be added to the 2012 TAS §406.1, either as advisory or a requirement, addressing curb ramp requirements as contained in the Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of Way, published July 26, 2011.

Department Response: The Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way are not enforceable. No change is necessary.

One commenter proposed additional text be added to 2012 TAS §406.4, addressing curb ramp requirements as contained in the Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of Way, published July 26, 2011.

Department Response: The Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way are not enforceable. No change is necessary.

One commenter requested that the Department clarify in the 2012 TAS §502.6, that each accessible parking space must have a sign.

Department Response: The Department disagrees as this would conflict with the federal requirements in the 2010 Standards for facilities with four or fewer parking spaces. Section 216.5 identifies where signs are required and where exceptions are allowed.

One commenter expressed concerns about how a Registered Accessibility Specialist (RAS) can be expected to review and inspect under the 2012 TAS if the training is not given until the fall.

Department Response: The training will occur this fall, not next fall, which is prior to March 15, 2012 which is the proposed effective date.

One commenter inquired about whether the RAS training would qualify for CEU credit.

Department Response: The Department will make every effort to award CEU credit for training on the new standards.

One commenter asked whether technical memos would be obsolete after the 2012 TAS goes into effect.

Department Response: The current technical memos will still be applicable to projects constructed under the 1994 TAS, but will not be applicable to compliance with the 2012 TAS.

One commenter requested that TDLR consider changing the AB Rules to allow a RAS to assist in the design process and give possible design solutions to the owner or design professional.

Department Response: This may be considered in the future; however, is not incorporated into the adopted rules.

One commenter expressed concerns that the 2012 TAS and 2010 SAD contain advisory notes and asked that it be clarified whether the advisory notes will be enforceable in the 2012 TAS and if so, requested that text from the advisory notes be removed and added to the text for the standards to avoid confusion.

Department Response: Just as in the federal standards, the advisory notes are provided for informational purposes only and are not mandatory. In most cases, advisory notes clarify the meaning of a requirement or provide recommendations for good practice.

One commenter asked that the statement about the advisory notes in the CFR be added to the 2012 TAS or the language clarified as to whether the advisory notes will be enforced.

Department Response: The Department will add the reference to the advisory notes from the CFR to the 2012 TAS.

One commenter expressed concern that there is no link to the revised 2012 TAS document on the Texas Register.

Department Response: The 2012 has been available on our website in advance and during the posting of the proposed rules in the Texas Register. In addition, the Texas Register posting provided a website address where this material could be found.

One commenter asked that TDLR make the intent of the advisory notes clear since some things like children’s mounting heights were previously required and only advisory notes in the 2012 TAS.

Department Response: Advisory in this context means that it is not required or mandatory, it does not prohibit the use of children’s mounting heights.

One commenter expressed concerns that Texas should continue to be the leader in accessibility and that it is sad to see Texas just take the 2010 SAD “as is” to avoid confusion.

Department Response: The Department believes the standards are appropriate and consistent with the desire of the public, the Advisory Committee, and the Commission to be consistent with federal standards.

One commenter asked whether independent persons will be allowed to do investigations for TDLR or is there a possibility that this might happen.

Department Response: Not at this time.

One commenter expressed concerned about getting adequate training for other standards referenced in the 2012 TAS.

Department Response: The Department understands the concern, and expects there will be adequate training available.

One commenter invited TDLR to the annual APA conference and offered assistance in trainings.

Department Response: No response is necessary.

One commenter asked if restrooms built with children’s mounting heights, would have to be changed to adult heights since the children’s heights are advisory.

Department Response: The intent of the advisory is to clarify the exception permitting use of children’s mounting heights. Although the advisory does not require the use of children’s mounting heights, they have prescribed dimensions for when they are provided.

One commenter asked if during an inspection children’s mounting height are used, what should be done.

Department Response: The advisory’s intent is to allow the use of the children’s mounting heights. The Department will apply common sense to the application of the 2012 TAS and emphasized that the advisory notes give flexibility. The Department will add language that advisory notes are “advisory”. FAQs will also be developed to address common questions.

One commenter suggested adding a definition for the term “level” to the new TAS standards.

Department Response: The Department will take this under advisement. No action is necessary at this time.

One commenter offered several comments including suggestions on hospital accessibility and the offer to eliminate the term “common area” as unnecessary. The term “elevator” should be omitted and replaced with “accessible route”.

Department Response: The Department will take these suggestions under advisement. No action is necessary at this time.

One commenter stated that the advisory comments under 206.2.3 are not clear.

Department Response: The advisory comments are not mandatory. The Department will take this under advisement. No further action is necessary at this time.

One commenter stated that the figure in 404.2.4.3 appears to not address how deep the maximum dimension of the door frame.

Department Response: The Department will review the figure and take any corrective action under advisement should it determine this necessary.

One commenter stated that toilet facilities are not usable when oversized toilet paper dispensers protrude into the leg room area.

Department Response: The Department will take this comment under advisement.

One commenter asked a question concerning the total number of accessible rooms necessary in a future dormitory project.

Department Response: The Department will be happy to assist this commenter on the question; however, this is not a comment in support of or requesting change to the 2012 TAS or the proposed rules. No response is necessary.

One commenter provided comment asking to omit the term “slip resistant” and use instead the term “high-traction”.

Department Response: The Department will take this under advisement for future consideration.

One commenter asked what section in the 2010 TAS will apply to ticketing counters, reception and information counters. He further asked questions on vertical clearance and parking spaces in the 2010 TAS.

Department Response: The Department will be happy to assist the commenter with the questions; however, the question does not address the posted 2012 TAS or the proposed rules. No response is necessary.

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

§68.10. Definitions.

The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Texas Government Code, Chapter 469, Elimination of Architectural Barriers (the Texas Architectural Barriers Act).

(2) Building--Any structure located in the State of Texas that is used and intended for supporting or sheltering any use or occupancy.

(3) Commencement of Construction--The date of placement of engineering stakes, delivery of lumber or other construction materials to the job site, erection of batter boards, formwork, or other construction related work.

(4) Completion of Construction--The date when a construction project results in occupancy or the issuance of a certificate of occupancy. For public roadway projects, completion of construction occurs upon final payment and release of the contractor performing the work or, if the work is performed by public employees, removal of barricades and opening of all traffic lanes for use.

(5) Construction Documents--Documents used for the construction of a building or facility, including working drawings, plans, specifications, addenda, change orders, and other supplemental documents issued for the purpose of construction.

(6) Contract Provider--The state agency or political subdivision under contract with the department to perform plan reviews, inspections, or both.

(7) Crosswalk--That part of a roadway where motorists are required to yield to pedestrians crossing, as defined by state and local regulations, whether marked or unmarked.

(8) Curb Line--A line that represents the extension of the face of the curb and marks the transition between the sidewalk and the gutter or roadway at a curb ramp or flush landing.

(9) Designated Agent--An individual designated in writing by the owner to act on the owner's behalf.

(10) Element--An architectural or mechanical component of a building, facility, space, or site, e.g., telephone, curb ramp, door, drinking fountain, seating, or water closet.

(11) Facility--All or any portion of buildings, structures, site improvements, elements, and pedestrian routes or vehicular ways located on a site: including complexes, equipment, roads, walks, passageways, parking lots, or other real property subject to the Act.

(12) Issue--To mail, deliver, transmit, or otherwise release plans or specifications to an owner, lessee, contractor, subcontractor, or any other person acting for an owner or lessee for the purpose of construction, applying for a building permit, or obtaining regulatory approval after such plans have been sealed by an architect, interior designer, landscape architect, or engineer. In the case of a state-funded or other public works project, it is the time at which plans or specifications are publicly posted for bids, after such plans or specifications have been sealed by an architect, interior designer, landscape architect, or engineer.

(13) Overall Responsibility--The level of responsibility held by an architect, interior designer, landscape architect or engineer who prepares construction documents and coordinates the various aspects of the design of a building or facility.

(14) Owner--The person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other entity that holds title to the subject building or facility. For purposes under these rules and the Act, an owner may designate an agent.

(15) Pedestrian Access Route--An accessible route for pedestrian use within the public right-of-way.

(16) Pedestrian Elements--Components that make up a pedestrian access route including, but not limited to walking surfaces, ramps, curb ramps, crosswalks, pedestrian overpasses and underpasses, automated pedestrian signals, elevators, and platform lifts.

(17) Public Right-of-Way--The land or property provided for public roadways, including the roadway itself and the areas between the roadway and adjacent properties.

(18) Registered Building or Facility--For the purposes of § 469.101 of the Act, a registered building or facility is a construction project that has been assigned a project registration number by the department.

(19) Registered Accessibility Specialist--An individual who is certified by the department to perform review and inspection functions of the department.

(20) Religious Organization--An organization that qualifies as a religious organization as provided in Texas Tax Code, Chapter 11, §11.20(c).

(21) Renovation, Modification, or Alteration--Any construction activity, including demolition, involving any part or all of a building or facility. Cosmetic work and normal maintenance do not constitute a renovation, modification, or alteration.

(22) Rules--Title 16, Texas Administrative Code, Chapter 68, the administrative rules of the Texas Department of Licensing and Regulation promulgated pursuant to the Act.

(23) Sidewalk--That portion of an exterior circulation path that is improved for use by pedestrians and usually paved.

(24) State Agency--A board, commission, department, office, or other agency of state government.

(25) TAS--The 2012 Texas Accessibility Standards which were adopted by the Commission and became effective March 15, 2012.

(26) Variance Application--The formal documentation filed with the department, by which the owner requests that the department waive or modify accessibility standards.

§68.30. Exemptions.

The following buildings, facilities, spaces, or elements are exempt from the provisions of the Act:

(1) Federal Property. Buildings or facilities owned, operated, or leased by the federal government;

(2) Restricted Occupancy Spaces. Vertical access (elevators and platform lifts) is not required for the second floor of two-story control buildings located within a chemical manufacturing facility where the second floor is restricted to employees and does not contain common areas or employment opportunities not otherwise available in accessible locations within the same building;

(3) Places Used Primarily for Religious Rituals. An area within a building or facility of a religious organization used primarily for religious ritual as determined by the owner or occupant. To facilitate the plan review, the owner or occupant shall include a clear designation of such areas with the plans submitted for review. This exemption does not apply to common use areas. Examples of common use areas include, but are not limited to, the following: parking facilities, accessible routes, walkways, hallways, toilet facilities, entrances, public telephones, drinking fountains, and exits;

(4) Van Accessible Parking at Garages Constructed Prior to April 1994. Parking garages where construction was started before April 1, 1994, and the existing vertical clearance of the garage is less than 98”, are exempted from requirements to have van-accessible parking spaces located within the garage. If additional surface parking is provided, the required van accessible parking spaces shall be located on a surface lot in closest proximity to the accessible public entrance serving the facility; and

(5) Residential Facilities. Those portions of public or privately funded apartments, condominiums, townhomes, and single-family dwellings used exclusively by residents and their guests.

§68.31. Variance Procedures.

(a) Requests to waive or modify an accessibility standard shall be submitted on the Variance Application form. A separate Variance Application form shall be submitted for each condition within a single building or facility.

(b) Variance Applications shall be submitted by the owner of the subject building or facility, and shall be accompanied by the applicable fee, plans of all affected areas, and any supporting documentation such as photos, cost analyses, and code references.

(c) A denial of a Variance Application may be appealed to the Director of Compliance, or his designee, in writing within thirty (30) calendar days from issuance, upon payment of the applicable appeal fee. Supporting documentation such as plans of all affected areas, photos, cost analyses and code references not previously reviewed may be submitted for consideration.

(d) A denial of a Variance Appeal from the Director of Compliance may be appealed to the Executive Director of the Texas Department of Licensing and Regulation, or his designee, in writing within thirty (30) calendar days of notification of the Director of Compliance’s decision. Supporting documentation such as plans of all affected areas, photos, cost analyses and code references not previously reviewed may be submitted for consideration.

(e) When a Variance or Variance Appeal determination has been made, the owner and the person making the submission shall be advised in writing of the determination.

(f) Variance and Variance Appeal determinations shall be based on the information and supporting documentation submitted with the application and shall be issued in accordance with §469.151 and §469.152 of the Act.

§68.50. Submission of Construction Documents.

(a) An architect, interior designer, landscape architect, or engineer with overall responsibility for the design of a building or facility subject to §469.101 of the Act, shall mail, ship, or hand-deliver the construction documents along with a Proof of Submission form to the department, a registered accessibility specialist, or a contract provider not later than the twentieth day after the plans and specifications are issued. In computing time under this subsection, a Saturday, Sunday or legal holiday is not included.

(b) In instances when there is not a design professional with overall responsibility, the owner of a building or facility subject to §469.101 of the Act, shall mail, ship, or hand-deliver construction documents to the department, a registered accessibility specialist, or a contract provider prior to filing an application for building permit or commencement of construction.

(c) An Architectural Barriers Project Registration form or Architectural Barriers Project Registration Confirmation Page must be completed for each subject building or facility and submitted along with the applicable fees when the design professional or owner submits the construction documents.

§68.65. Advisory Committee.

(a) The Elimination of Architectural Barriers Advisory Committee shall review rules relating to the Elimination of Architectural Barriers program and recommend changes to the Commission.

(b) The Elimination of Architectural Barriers Advisory Committee may review Technical Memoranda relating to the Elimination of Architectural Barriers program and recommend changes.

(c) Recommendations of the committee will be transmitted to the Commission by the Executive Director through the Director of the Compliance Division.

(d) Committee meetings are called by the committee chair or the Commission.

(e) Expenses reimbursed to committee members shall be limited to authorized expenses incurred while on committee business and traveling to and from committee meetings. The least expensive method of travel should be used.

(f) Expenses paid to committee members shall be limited to those allowed by the State of Texas Travel Allowance Guide and the Texas Department of Licensing and Regulation policies governing travel allowances for employees.

(g) The committee shall be composed of building professionals and persons with disabilities who are familiar with architectural barriers problems and solutions. The committee shall be composed of nine members. Persons with disabilities must make up a majority of the membership. Committee members will serve staggered three-year terms.

§68.74. Continuing Education.

(a) Terms used in this section have the meanings assigned by Chapter 59 of this title, unless the context indicates otherwise.

(b) To renew a certificate of registration, a registered accessibility specialist must complete eight hours of continuing education as provided in this section.

(1) The continuing education hours must include four hours of instruction in courses approved by the department under Chapter 59 of this title in one or more of the following topics:

(A) Texas Government Code, Chapter 469, Elimination of Architectural Barriers

(B) 16 Texas Administrative Code, Chapter 68 – Administrative Rules;

(C) 2012 Texas Accessibility Standards;

(D) Technical Memoranda as published by the Department; or

(E) Registered Accessibility Specialist Procedures as published by the Department.

(2) The continuing education hours may include up to four hours of instruction in courses that are not approved by the department under Chapter 59 of this title and that are offered by providers not registered with the department under Chapter 59 of this title, subject to the following conditions:

(A) The courses must be dedicated to instruction in one or more of the topics listed in subsection (f);

(B) The registered accessibility specialist must certify at the time of renewal the number of hours completed under this subsection;

(C) The department has final authority to deny any hours of credit claimed by a registered accessibility specialist under this subsection; and

(D) The credit received under this subsection may not count toward the four hours of instruction required by paragraph (1).

(c) The continuing education hours must have been completed within the term of the current registration, in the case of a timely renewal. For a late renewal, the continuing education hours must have been completed within the one-year period immediately prior to the date of renewal.

(d) A registered accessibility specialist may not receive continuing education credit for attending the same course more than once during the one-year period for which the course is approved.

(e) A registered accessibility specialist shall retain a copy of the certificate of completion for a course for three years after the date of completion. In conducting any inspection or investigation of the registered accessibility specialist, the department may examine the registered accessibility specialist’s records to determine compliance with this section.

(f) To be approved under Chapter 59 of this title, a provider’s course must be dedicated to instruction in one or more of the following topics:

(1) Texas Government Code, Chapter 469 – Elimination of Architectural Barriers;

(2) 16 Texas Administrative Code, Chapter 68 – Administrative Rules;

(3) 2012Texas Accessibility Standards;

(4) Technical Memoranda as published by the Department;

(5) Registered Accessibility Specialist Procedures as published by the Department;

(6) Other laws and standards:

(A) 2010 Standards for Accessible Design or any other accessibility guidelines proposed or adopted by the Access Board or United States Department of Justice;

(B) Americans with Disabilities Act;

(C) International Code Council/American National Standards Institute (ANSI) A117.1 Standard on Accessible and Usable Buildings and Facilities;

(D) Life safety codes; or

(E) Fair Housing Act;

(7) Business practices;

(8) Ethics; or

(9) Presentations on products related to accessibility.

(g) This section shall apply to providers and courses for registered accessibility specialists upon the effective date of this section.

(h) This section shall apply to certificates of registration, issued under §469.201 of the Act, that expire on or after July 1, 2012.

§68.76. Standards of Conduct for Registered Accessibility Specialist.

(a) Competency. The registered accessibility specialist shall be knowledgeable of and adhere to the Act, the rules, the TAS, Technical Memoranda published by the department, and all procedures established by the department. It is the obligation of the registered accessibility specialist to exercise reasonable judgment and skill in the performance of plan reviews, inspections, and related activities.

(b) Integrity. A registered accessibility specialist shall be honest and trustworthy in the performance of plan review, inspection, and related activities, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited.

(c) Interest. The primary interest of the registered accessibility specialist is to ensure compliance with the Act, the rules, and the TAS. The registered accessibility specialist's position, in this respect, should be clear to all parties concerned while conducting plan reviews, inspections, and related activities.

(d) Conflict of Interest. A registered accessibility specialist is obliged to avoid conflicts of interest and the appearance of a conflict of interest. A conflict of interest exists when a registered accessibility specialist performs or agrees to perform a plan review, inspection, or related activity for a project in which he/she has a financial interest, whether direct or indirect. A conflict of interest also exists when a registered accessibility specialist's professional judgment and independence are affected by his/her own family, business, property, or other personal interests or relationships.

(e) Specific Rules of Conduct. A registered accessibility specialist shall not:

(1) participate, whether individually or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, the rules, or the TAS;

(2) knowingly furnish inaccurate, deceitful, or misleading information to the department, a building owner, or other person involved in a plan review, inspection, or related activity;

(3) state or imply that the department will approve a variance;

(4) submit a variance application for a project in which the RAS has provided review or inspection services;
(5) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing a plan review, inspection, or related activity;

(6) perform a plan review, inspection, or related activity in a negligent or incompetent manner;

(7) perform a plan review, inspection, or related activity on a building or facility in which the registered accessibility specialist is an owner, either in whole or in part, or an employee of a full or partial owner;

(8) perform a plan review, inspection, or a related activity on a building or facility that is or will be leased or occupied by an agency of the State of Texas, when the registered accessibility specialist is an employee of the state agency that will occupy the facility;

(9) perform a plan review, inspection, or related activity on a building or facility wherein the registered accessibility specialist participated in creating the overall design of the current project;

(10) use the Texas State seal without obtaining the appropriate license in accordance with Texas Business and Commerce Code, Chapter 17, §17.08(c); or

(11) represent himself or herself as an employee of the department or as a person hired by the department.

§68.80. Fees.

(a) Fees collected by the department will be assessed according to the fee schedule. Plan review and inspection fees collected by the department shall be determined by the estimated cost of construction for the project, not including site acquisition, architectural, engineering or consulting fees, furnishings, or equipment that is not part of the building mechanical systems. Fee Schedule:

Estimated Construction Cost-50,000 - 200,000−Plan Review Fee-250; Project Filing Fee-$175; Inspection Fee-$350
Estimated Construction Cost-200,001 - 500,000−Plan Review Fee-$315; Project Filing Fee-$175; Inspection Fee-$375
Estimated Construction Cost-500,001 - 1,000,000−Plan Review Fee-$380; Project Filing Fee-$175; Inspection Fee-$400
Estimated Construction Cost-1,000,001 - 5,000,000−Plan Review Fee-$445; Project Filing Fee-$175; Inspection Fee-$445
Estimated Construction Cost-5,000,001 - 10,000,000−Plan Review Fee-$575; Project Filing Fee-$175; Inspection Fee-$575
Estimated Construction Cost-10,000,001 - 15,000,000−Plan Review Fee-$620; Project Filing Fee-$175; Inspection Fee-$620
Estimated Construction Cost-15,000,001- 25,000,000−Plan Review Fee-$785; Project Filing Fee-$175; Inspection Fee-$785
Estimated Construction Cost-25,000,001 - 50,000,000−Plan Review Fee-$955; Project Filing Fee-$175; Inspection Fee-$955
Estimated Construction Cost-50,000,001 - 75,000,000−Plan Review Fee-$1175; Project Filing Fee-$175; Inspection Fee-$1175
Estimated Construction Cost-> 75,000,000−Plan Review Fee-Contact TDLR; Project Filing Fee-$175; Inspection Fee-Contact TDLR

Late Project Filing Fee: $300
Preliminary Review Fee: $145 each
State Lease Inspection (no construction): $225 per lease
Special Inspection Fee: $215 per hour, one hour minimum
Variance Application Fee: $175 each
Variance Appeal Fee: $200 each
Texas Accessibility Academy Fee: $150

Registered Accessibility Specialist Fees:
Application for Certificate of Registration: $300
Registration Renewal: $250
Wall Certificate Duplicate or Replacement: $25
Wallet Card Duplicate or Replacement: $25

(b) When the estimated construction cost is less than $50,000, and the project is registered with the department for plan review, inspection, or plan review and inspection, the following shall apply:

(1) the project filing fee and a $200 plan review fee shall be paid for registration and review only;

(2) the project filing fee and a $200 inspection fee shall be paid for registration and inspection only;

(3) the project filing fee, a $200 plan review fee, and a $200 inspection fee shall be paid for registration, plan review, and inspection; or

(4) for projects submitted to a registered accessibility specialist or a contract provider, only the project filing fee is required.

(c) When a project is not subject to the Act and is registered with the department for plan review, inspection, or for plan review and inspection, the following shall apply:

(1) the project filing fee and applicable plan review fee shall be paid for plan review services only;

(2) the project filing fee, and applicable inspection fee shall be paid for inspection services only;

(3) the project filing fee, applicable plan review fee, and applicable inspection fee shall be paid for plan review and inspection services; or

(4) for projects submitted to a registered accessibility specialist or a contract provider, only the project filing fee is required.

(d) When a project is registered with the department for preliminary review, the preliminary plan review fee shall be paid.

(e) When a project is registered with the department after completion of construction, the late project filing fee and other applicable fees shall apply. The late project filing fee is in addition to the plan review fee and is required to be paid to the department for projects submitted to the department, a registered accessibility specialist, or contract provider. This fee is applicable when projects are registered after the completion of construction and is in lieu of the project filing fee.

(f) Late renewal fees for registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(g) All fees are non refundable and must be paid prior to service being performed.

§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 Commission 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.

§68.101. State Leases.

(a) State leased buildings or facilities with an annual lease expense in excess of $12,000 shall be registered with the department by completing a State Lease Registration form and submitting it along with the applicable fee(s). This requirement applies to both initial lease agreements and lease renewals. For state leased buildings or facilities that are being constructed, renovated, or modified, an Elimination of Architectural Barriers Project Registration form or Architectural Barriers Project Registration Confirmation page shall also be completed.

(b) The agency shall, prior to advertisement for bid, submit to the department for a determination a completed Lease Evaluation Form obtained from the department. If a Lease Evaluation Form is not submitted, compliance with all applicable standards shall be required. State leases may be exempted from compliance if it is determined by the department that the space will not be used by the public and that the occasion for employment for persons with disabilities is improbable because of the essential job functions.

(c) Buildings or facilities that are leased or occupied in whole or in part for use by the state, shall meet the following requirements of TAS:

(1) New construction shall comply with TAS 201.1.

(2) Additions shall comply with TAS 202.2.

(3) Alterations shall comply with TAS 202.3 and 202.4

(4) Historic buildings or facilities shall comply with TAS 202.5.

(5) Existing buildings and facilities are ones that have not been constructed, renovated, or modified since April 1, 1994. In an existing building or facility, where alterations are not planned or the planned alterations will not affect an area containing a primary function, the following minimum requirements shall apply:

(A) If parking is required as part of the lease agreement or is provided to serve the leased area, accessible parking spaces shall comply with TAS 208 and 502.

(B) An accessible route from the parking area(s) shall comply with TAS 206 and 402.

(C) At least one entrance serving the leased space shall comply with TAS 206.4.5 and 404.

(D) If toilet rooms or bathrooms are required by the lease agreement or are provided to serve the leased area, at least one set of men's and women's toilet rooms or bathrooms or at least one unisex toilet room or bathroom serving the leased area shall comply with TAS 213 and 603.

(E) Signage at toilet rooms or bathrooms shall comply with TAS 703. Toilet rooms or bathrooms serving the leased area which are not accessible shall be provided with signage complying with TAS 703.1, 703.2.4, 703.2.5, 703.6.2 and 703.7, indicating the location of the nearest accessible toilet room or bathroom within the facility.

(F) If drinking fountains are required by the lease agreement, or are provided to serve the leased area, at least one fountain shall comply with TAS 602. If more than one drinking fountain is provided, at least 50% shall comply with TAS 602.

(G) If public telephones are required by the lease agreement, or are provided to serve the leased area, at least one public telephone shall comply with TAS 704.

(H) If an element or space of a lease is not specified in this subsection but is present in a state leasehold, that element or space shall comply with TAS 201.1.

§68.102. Public Right-of-Ways Projects.

(a) For purposes of §68.80, the estimated cost of construction for the project shall be based on the pedestrian elements only. Construction documents submitted for review are only required to include pedestrian elements being constructed, renovated, modified, or altered as part of the project scope.

(b) Application of TAS shall be limited to those pedestrian elements being constructed, renovated, modified, or altered as part of the project scope. The pedestrian elements shall comply with applicable sections of TAS except as modified by this section.

(1) Sidewalks--At sidewalks constructed within the public right-of-way, handrails are not required; however, if provided they must comply with TAS 405.8. Where the adjacent roadway has running slopes of 5% or greater, the pedestrian access route shall not exceed the grade established for the adjacent roadway. EXCEPTION: The running slope of a pedestrian access route is permitted to be steeper than the grade of the adjacent roadway provided that the pedestrian access route complies with TAS 405.

(2) Curb Ramps--At curb ramps constructed within the public right-of-way, handrails are not required; however, if provided they must comply with TAS 405.8. For purposes of this section, non-signalized driveways are not considered to be hazardous vehicular areas.

(A) At perpendicular curb ramps constructed within the public right of way, detectable warnings complying with TAS 705 at a minimum of 24” in depth (in the direction of pedestrian travel) and extending the full width of the curb ramp shall be provided where the pedestrian access route enters a crosswalk or other hazardous vehicular area.

(B) At parallel curb ramps constructed within the public right-of-way, detectable warnings complying with TAS 705 at a minimum of 24” in depth (in the direction of pedestrian travel) and extending the full width of the landing shall be provided where the pedestrian access route enters a crosswalk or other hazardous vehicular area.

(C) At diagonal curb ramps constructed within the public right-of-way, detectable warnings complying with TAS 705 at a minimum of 24” in depth (in the direction of pedestrian travel) and extending the full width of the curb ramp or landing, shall be provided where the pedestrian access route enters a crosswalk or other hazardous vehicular area. Additionally, the department will allow the detectable warning to be curved with the radius of the corner. The detectable warning shall be located so that the edge nearest the curb line is 6” minimum and 10” maximum from the curb line.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 30, 2012.

William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation

*n
The repeal is adopted under Texas Occupations Code, Chapter 51 and Texas Government Code, Chapter 469, which authorize the Department’s governing body, the Commission, 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 repeal are those set forth in Texas Occupations Code, Chapter 51 and Texas Government Code, Chapter 469. No other statutes, articles, or codes are affected by the adopted repeal.

§68.103. Detention and Correctional Facilities.
§68.104. Elements, Spaces, and Accessible Routes at Fire Stations.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on January 30, 2012.

William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation

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