Elevators, Escalators and Related Equipment Safety and Licensing
Justification for Repeal and Adopted Rules

Chapter 74, Elevators, Escalators, and Related Equipment
16 Texas Administrative Code (TAC), Chapter 74,
repeal of §§74.1, 74.10, 74.20, 75.25, 74.26, 74.30, 74.50, 74.55, 74.60, 74.65, 74.70, 74.75, 74.80, 74.85, 74.90, and 74.100; and
adoption of new rules at §§74.1, 74.10, 74.20 - 74.25, 74.30, 74.40, 74.50, 74.55, 74.57, 74.60, 74.65, 74.70, 74.72, 74.74 - 74.78, 74.80, 74.90, 74.100, 74.110 - 74.115, and 74.120 - 74.122
(effective: July 1, 2012)

The Texas Commission of Licensing and Regulation (Commission) adopts the repeal of existing rules at 16 Texas Administrative Code, (TAC), Chapter 74, §§74.1, 74.10, 74.20, 75.25, 74.26, 74.30, 74.50, 74.55, 74.60, 74.65, 74.70, 74.75, 74.80, 74.85, 74.90, and 74.100; and new rules at §§74.1, 74.10, 74.20 - 74.25, 74.30, 74.40, 74.50, 74.55, 74.57, 74.60, 74.65, 74.70, 74.72, 74.74 - 74.78, 74.80, 74.90, 74.100, 74.110 - 74.115, and 74.120 - 74.122, regarding the safety standards for elevators, escalators, and related equipment as published in the April 13, 2012, issue of the Texas Register (37 TexReg 2489).

The repeal of §§74.1, 74.10, 74.20, 75.25, 74.26, 74.30, 74.50, 74.55, 74.60, 74.65, 74.70, 74.75, 74.80, 74.85, 74.90, and 74.100; and new §§74.1, 74.10, 74.20 - 74.25, 74.30, 74.50, 74.55, 74.57, 74.60, 74.65, 74.70, 74.72, 74.74 - 74.78, 74.80, 74.90, 74.100, 74.110 - 74.115, and 74.120 - 74.122 are adopted without changes to the proposed text as published in the April 13, 2012, issue of the Texas Register (37 TexReg2489).

New §74.40 is adopted with changes to the proposed text as published in the April 13, 2012, issue of the Texas Register (37 TexReg2489). The adoption takes effect July 1, 2012.

The repeal and new rules are necessary to implement House Bill (HB) 2643, 82nd Legislature, Regular Session (2011), which amends Texas Health and Safety Code, Chapter 754, relating to the safety standards for elevators, escalators, and related equipment. HB 2643 added new requirements regarding: (1) general liability insurance for contractors; (2) continuing education requirements for contractors’ responsible parties; and (3) submission and review of plans for installation or alteration of equipment. The repeal and new rules implement these statutory changes.

In addition, the repeal and new rules are necessary to reflect changes made to 16 TAC, Chapter 74 pursuant to the four-year rule review under Texas Government Code §2001.039. (See Notice of Intent to Review, 34 TexReg 4647, and Notice of Re-adoption, 34 TexReg 6350). The Commission adopts the repeal of existing rules and adopts new rules in order to reorganize and clarify 16 TAC, Chapter 74.

The adoption adds new §74.1, Authority. This new section is the same as former §74.1, Authority, which is repealed as part of this adoption.

The adoption adds new §74.10, Definitions. This new section is similar to former §74.10, Definitions, which is repealed as part of this adoption. The new section retains the definitions of the former rule and adds definitions of “commission,” “department,” “executive director,” and “responsible party.”

The adoption adds new §74.20, Inspector Registration Requirements. This new section is similar to former §74.20, Inspector Registration Requirements, which is repealed as part of this adoption. The adoption retains subsections (a) and (b) of the former rule and standardizes the format of this rule with the registration rules in the Department’s other programs. The renewal and the education provisions that were included in the former rule were relocated as part of this adoption.

The adoption adds new §74.21, Inspector Registration Requirements--Renewal. This new section incorporates the inspector registration renewal provisions located under subsections (c) and (d) of former §74.20, which is repealed as part of this adoption. The new section reflects the standardized format that is used in the registration renewal rules in the Department’s other programs.

The adoption adds new §74.22, Contractor Registration Requirements. This new section includes provisions that were formerly located under subsection (a) of §74.25, Contractor Registration Requirements, which is being repealed as part of this adoption. The new section reflects the standardized format that is used in the registration rules for the Department’s other programs.

The adoption adds new §74.23, Contractor Registration Requirements-Renewal. This new section includes provisions that were formerly located under subsection (b) of §74.25, Contractor Registration Requirements, which is being repealed as part of this adoption. The new section reflects the standardized format that is used in the registration renewal rules for the Department’s other programs.

The adoption adds new §74.24, Responsible Party Eligibility Requirements. This new section sets out the eligibility requirements for a contractor’s responsible party or parties as added to the statute by HB 2643. This new section also addresses adding and removing a responsible party from the contractor’s registration.

The adoption adds new §74.25, Continuing Education. This new section sets out the continuing education requirements for a contractor’s responsible party or parties as added to the statute by HB 2643. The new section requires eight hours of continuing education per year and lists the general topics that the courses must cover.

The adoption adds new §74.30, Exemptions. This new section is similar to former §74.30, Exemptions, which is repealed as part of this adoption. The new section keeps the existing exemptions and makes a technical correction to the former rule.

The adoption adds new §74.40, Contractor Insurance Requirements. This new section sets out the general liability insurance provisions including coverage amounts as added to the statute by HB 2643. This section was amended based on the public comments received, as discussed below.

The adoption adds new §74.50, Reporting Requirements - Building Owner. This new section is similar to former §74.50, Reporting Requirements - Building Owner, which is repealed as part of this adoption. The new section removes outdated references to “requests to delay the installation of door restrictors” that were included in the former rule.

The adoption adds new §74.55, Reporting Requirements - Inspector. This new section is similar to former §74.55, Reporting Requirements - Inspector, which is repealed as part of this adoption. The new section separates new installations and alterations into two separate subsections. It requires the inspector to provide a copy of the Equipment Inspection Form to the building owner for new installations and to the Department and the building owner for alterations.

The adoption adds new §74.57, Reporting Requirements - Contractor. This new section is similar to former §74.26, Reporting Requirements - Contractor, which is being repealed as part of this adoption. The new section makes technical corrections to the former rule.

The adoption adds new §74.60, Responsibilities of the Department. This section includes provisions that are similar to the provisions that were formerly located under §74.85, Responsibilities of the Department, which is being repealed as part of this adoption. This new section does not include provisions located under former subsection (c) of §74.85, regarding new technology variances. Those new technology variance provisions have been relocated to new §74.120 through §74.122 in this adoption. New §74.60 includes the Department’s responsibilities of reviewing applications for new technology variances and reviewing applications and plans for installations of new equipment and alterations of existing equipment. The new section also updates the information included on the certificates of compliance.

The adoption adds new §74.65, Advisory Board. This new section is similar to former §74.65, Advisory Board, which is repealed as part of this adoption. The new section makes technical corrections to the former rule.

The adoption adds new §74.70, Responsibilities of the Building Owner. This new section is similar to former §74.70, Responsibilities of the Building Owner, which is repealed as part of this adoption. The new section requires that installations of new equipment and alterations to existing equipment have plans reviewed by the Department. The new section also makes technical corrections to the former rule and updates the cross references to other rule sections.

The adoption adds new §74.72, Standards of Conduct for Inspector or Contractor Registrants. This new section includes provisions that were formerly located under §74.60, Standards of Conduct for Inspector or Contractor Registrants, which is repealed as part of this adoption. The new section clarifies that the provisions apply to both inspectors and contractors, except where noted. The new section requires an inspector to attend all mandatory training required by the Executive Director. It also requires contractors and inspectors to notify the Department in writing within 30 days of any changes to information submitted on the application or renewal application.

The adoption adds new §74.74, Responsibilities of the Inspector - Inspection Procedures. This new section includes provisions that were formerly located under subsection (a) of §74.75, Responsibilities of the Inspector, which is repealed as part of this adoption. This new section focuses on the inspection procedures. The new section requires the inspector to verify that approved applications and plans are on the site and prohibits the inspector from proceeding with the inspection without the approved application and plans. It requires the inspector verify that the installation or alterations comply with the approved application and plans.

The adoption adds new §74.75, Responsibilities of the Inspector – Department Forms. This new section includes provisions that were formerly located under subsection (b) of §74.75, Responsibilities of the Inspector, which is repealed as part of this adoption. This new section focuses on the Department forms used for an inspection.

The adoption adds new §74.76, Responsibilities of the Inspector - Inspectors Equipment Test Tags. This new section includes provisions that were formerly located under subsection (c)(1) of §74.75, Responsibilities of the Inspector, which is repealed as part of this adoption. This new section focuses on the inspection equipment test tags.

The adoption adds new §74.77, Responsibilities of the Inspector - Inspectors Equipment Decals. This new section includes provisions that were formerly located under subsection (c)(2) of §74.75, Responsibilities of the Inspector, which is repealed as part of this adoption. This new section focuses on the inspection equipment decals.

The adoption adds new §74.78, Responsibilities of the Contractor. The new section requires the contractor to comply with the requirements for plan review as set forth in this chapter. It also requires the contractor to provide the inspector a copy of the approved application and plans and, upon completion of the inspection, leave a copy of the approved application and plans in the machine room, machine space, control room or control space.

The adoption adds new §74.80, Fees. This new section is similar to former §74.80, Fees, which is repealed as part of this adoption. The adoption adds new fees for regular and expedited “Plan Reviews” and “Amendments to Previously Approved Plan Reviews.” In addition, the adoption reorganizes, renumbers, and adds headings to the fee subsections located in the former rule.

The adoption adds new §74.90, Administrative Penalties and Sanctions. This new section is similar to former §74.90, Sanctions, which is repealed as part of this adoption. This new section has been re-titled to standardize the title of this rule with the other Department’s program rules. The adoption also makes other technical corrections to this section.

The adoption adds new §74.100, Technical Requirements - ASME and ASCE Codes. This new section is similar to former §74.100, Technical Requirements, which is repealed as part of this adoption. This section has been re-titled to clarify the technical requirements contained in this section. Other technical corrections also have been made to this section.

The adoption adds new §74.110, Plan Review - Required. This new section requires a contractor to submit and have approved an application and plans for the installation of new equipment or alteration of existing equipment. It specifies the contractor shall submit two copies in a manner prescribed by the Department.

The adoption adds new §74.111, Plan Review - New Equipment. This new section specifies the documents, fees and information the contractor must submit for review of an application and plans for the installation of new equipment.

The adoption adds new §74.112, Plan Review - Alteration of Existing Equipment. This new section specifies the documents, fees and information the contractor must submit for review of an application and plans for the alteration of existing equipment.

The adoption adds new §74.113, Plan Review - Department Approval or Denial. This new section requires the Department to conduct a plan review for the installation or alteration of equipment and provides that the Department may approve, approve with conditions, or deny the application and plans.

The adoption adds new §74.114, Plan Review - Amendments. This new section allows a contractor to amend a previously approved application and plans if the installation or alteration of equipment has not been completed. This section specifies the documents, fees and information the contractor must submit for review of any amendments to a previously approved plan review.

The adoption adds new §74.115, Plan Review – Expedited Review. This new section allows a contractor to request an expedited review of the application and plans for installation of new equipment, alteration of existing equipment, or amendments to a previously approved plan review.

The adoption adds new §74.120, New Technology Variances – Application for Variance. This new section includes provisions that were formerly located under subsections (c), (c)(1), and (c)(2) of §74.85, Responsibilities of the Department, which is repealed as part of this adoption. This new section requires a contractor or an equipment manufacturer to submit an application for a new technology variance for approval by the Department. This section specifies the documents, fees, and information that must be submitted with the application.

The adoption adds new §74.121, New Technology Variances – Department Approval or Denial. This new section includes provisions that were formerly located under subsection (c)(3) of §74.85, Responsibilities of the Department, which is repealed as part of this adoption. This section provides that the applicant for a new technology variance shall be notified of the Department’s approval or denial decision in writing.

The adoption adds new §74.122, New Technology Variances – Appeal of Variance Denial. This new section includes provisions that were formerly located under subsection (c)(4) of §74.85, Responsibilities of the Department, which is repealed as part of this adoption. This new section sets out the process for appealing a denial of an application for a new technology variance. This new section has been revised from the former rule to more closely follow the variance appeal process used in the Elimination of Architectural Barriers program under 16 TAC, §68.31.

The Department drafted and distributed the proposed repeal and proposed new rules to persons internal and external to the agency. The proposed repeal and proposed new rules were published in the April 13, 2012, issue of the Texas Register (37 TexReg 2489). The 30-day public comment period closed on May 14, 2012.

The Department received six public comments during the 30-day public comment period from: (1) Insurance Services Office (ISO), an insurance advisory organization; (2) Lift Aids Inc., a registered elevator contractor; (3) Property Casualty Insurers Association of America (PCI), a national trade association; (4) Home Elevator of Texas, a registered elevator contractor; (5) AEMA, an association of contractors and manufacturers of the accessibility and residential equipment industry; and (6) Superior Elevator Services, a registered elevator contractor. The six public comments address the following three sections of the proposed rules: (1) §74.24, Responsible Party Eligibility Requirements; (2) §74.25, Continuing Education; and (3) §74.40, Contractor Insurance Requirements.

The Elevator Advisory Board met May 16, 2012, to discuss the public comments and the proposed rules. The public comments are summarized below by rule section, followed by the Department’s responses to these public comments. The Elevator Advisory Board recommended that the proposed rules be adopted as published, with changes to §74.40 based on the public comments received and the Department’s recommendations.

§74.24. Responsible Party Eligibility Requirements.

Section 74.24 sets out the eligibility requirements for a contractor’s responsible party or parties.

Public Comments: The Department received public comments from Home Elevator of Texas and AEMA, both of which asked what is the manner prescribed by the department to verify the responsible party eligibility requirements? The two interested parties did not suggest any changes to the proposed rule.

Department Response: As part of the registration process, there will be forms that will request this information and any supplemental documentation. The language in the rules gives the Department flexibility to determine what documentation is submitted and how the documentation is submitted. The Department did not make any changes to the proposed rules based on these public comments.

§74.25. Continuing Education.

Section 74.25 sets out the new continuing education requirements for a contractor’s responsible party or parties. The new section requires eight hours of continuing education per year and lists the general topics that the courses must cover. The Department received four public comments on this section.

Public Comment 1: The Department received a public comment from Lift Aids, Inc., which asked several questions about the continuing education requirements including: (1) What are the guidelines for acceptable hours and who approves the hours? (2) Will a manufacturer’s courses at its facilities count as education? (3) Are the National Association of Elevator Contractors (NAEC) Certified Elevator Technician (CET) and Certified Accessibility Technician (CAT) courses approved in this education? and (4) Can accessibility/residential contractors only take courses that they work on? The interested party did not suggest any changes to the proposed rule.

Public Comments 2 and 3: The Department received public comments from Home Elevator of Texas and AEMA, which asked who the current approved continuing education providers are for non‑union merit shop registered elevator contractors. The two interested parties expressed concerns that if providers are unavailable the elevator contractors are in jeopardy of nonrenewal after January 1, 2013. The two interested parties also requested to meet with the Department to determine whether the continuing education courses and programs provided by manufacturers and national organizations can be approved by the Department. In addition, AEMA requested to meet with the Department to determine whether AEMA’s continuing education programs that it offers its members could be adapted for approval by the Department. The two interested parties did not suggest any changes to the proposed rule.

Public Comment 4: The Department received public comments from Superior Elevator Services, which asked where the continuing education classes would be given and by whom. The interested party expressed concern that a local college may offer courses on ethics and business practices but not on the elevator related codes and technical requirements. The interested party did not suggest any changes to the proposed rule.

Department Response: At the Elevator Advisory Board meeting on May 16, 2012, the Department staff explained the continuing education course approval process and the provider registration process. The Department has developed the forms that will be used by persons applying for provider registration and/or for course approval. Since the rules had not been adopted yet, no continuing education providers or courses had been approved yet for the Elevator Program. The interested parties may contact the Department regarding any questions they may have about the continuing education requirements and/or process. The Department did not make any changes to the proposed rules based on the public comments.

§74.40. Contractor Insurance Requirements.

Section 74.40 establishes the contractor insurance requirements including the minimum amounts of general liability insurance coverage as prescribed by the statute. The Department received two public comments on this section, and specifically on subsections (b) and (e).

§74.40(b)

As proposed, §74.40(b) requires insurance coverage be obtained from an insurance provider authorized to sell general liability insurance in Texas.

Public Comment: Property Casualty Insurers Association of America (PCI) offered comments that the proposed language “limits purchase of the general liability insurance required by statute only from ‘authorized’ insurance companies. Many of these policies are currently written by surplus lines companies which are not ‘authorized’ to write in Texas but are statutorily defined as ‘eligible surplus lines insurers.’ (Texas Insurance Code, §981.002). PCI recommends that this section be amended to reflect that these policies can be written by both authorized and eligible insurers.”

Department Response: The purpose of subsection is to require that the general liability insurance policy be written by an insurer that is legally allowed to do business in Texas. The word “authorized” was intended to be read broadly. The Department did not intend for the language to be interpreted to preclude insurers who are “eligible” to conduct business in Texas. In response to the public comment and for clarity purposes, the Department has amended the language to read “authorized or eligible.” The Department has also changed the word “sell” to “write” for technical clarity purposes.

§74.40(e)

As proposed, §74.40(e) states that the certificate of insurance must contain a provision obligating the insurer to give the Department 30 days written notice before the effective day of a policy cancellation date.

Public Comment 1: Insurance Services Office (ISO) expressed several concerns with the 30 day notice requirement. First, ISO believes the notice provision is inconsistent with existing Texas Insurance Code provisions, specifically Texas Insurance Code §551.053, regarding notice of cancellation, and Texas Insurance Code Chapter 1811, regarding certificates of insurance.

ISO stated that “pursuant to Tex. Ins. Code §551.053, an insurer may cancel certain liability insurance policies by mailing or delivering to the First Named Insured notice of cancellation at least 10 days before the effective date of cancellation. However, the proposed requirement in §74.40(e) does not recognize this section of the Texas Insurance Code, and appears inconsistent with this section” by giving the Department 30 days prior notice of cancellation, which is more than the name insured.

ISO also stated that §74.40(e) requires that the certificate of insurance “contain a provision ‘obligating the insurer’ to give the Department such notice of cancellation. However, given that some insurance policies already include provisions responsive to the 10 day notice requirements of Tex. Ins. Code §551.053 but do not include provisions requiring 30 day notice to the Department, this requirement would seem to directly conflict with Tex. Ins. Code §1811.001, et seq., which governs certificates of insurance.” Chapter 1811 prohibits the certificate of insurance from amending the coverage or terms and conditions provided by the insurance policy, and it prohibits the issuance of a certificate of insurance that contains any false or misleading information concerning the insurance policy.

Second, ISO also expressed concerns that the notice provision was not addressed in HB 2643, and it may pose unnecessary burdens on insurers. ISO stated that HB 2643 requires the Commission by rule to implement the statutory requirement that “contractors have general liability insurance at the amounts stipulated in the legislation … [I]nsurers providing notice of cancellation to the Department is not addressed at all in this legislation.” ISO stated that “the more appropriate party to provide any such notice of cancellation of the general liability insurance to the Department would be the insured contractor.” In addition, ISO stated that the “notice requirement could impose an unnecessary administrative and programming burden, and additional related costs, upon insurers not expressly supported by former H.B. 2643.”

ISO suggested “that Paragraph (e) of §74.40 of the proposed regulation be deleted entirely or revised to require that the insured contractor be the party that is required to provide the Department with notice of cancellation.”

Public Comment 2: Property Casualty Insurers Association of America (PCI) expressed several concerns with this provision. First, PCI stated that the “requirement that an insurer give a third party, TDLR, rights to notification that exceed both the statutory (Texas Insurance Code, §551.053) and contractual policy notification rights for the insured party exceeds the statutory authority of the agency. HB 2643 adopted minimum general liability limits of $1 million for bodily injury or death, and, $500,000 for property damage as a condition of contractor registration,” but the Department’s rulemaking authority is limited as prescribed under “§1302.1011(3).”

Second, PCI stated that §74.40(e) “presents both cost and operational problems for contractors and insurance companies. In order for an agent to provide a certificate of insurance that provides for 30 days advance notice of cancellation, the policy must be amended by endorsement to make that change in the policy. This will add cost and administrative delays in writing these policies. Also, when an insured contractor fails to pay premium, the normal cancellation notice is ten days. If insurers are forced to give 30-days notice of cancellation for failure to pay premium then the insurer in effect could be forced to provide free insurance for that 30-day period. … [I]nsurance companies will have to calculate the risk and cost of being forced to extend the cancellation period.” PCI stated that this subsection “could have the effect of making it more expensive and much more difficult for contractors to buy general liability insurance.” PCI recommended that proposed §74.40(e) be deleted.

Department Response: In response to the concerns that proposed §74.40(e) conflicts with the insurance statutes, Texas Insurance Code §551.053 sets a statutory minimum of 10 days notice of cancellation, so requiring 30 days notice does not conflict with the Insurance Code. Insurers are not prohibited from providing additional notice. This insurance provision also applies to the notice that the insured must give to the first name insured not to a third party.

In response to the concerns that proposed §74.40(e) conflicts with Texas Insurance Code Chapter 1811, the Department knows that the certificate of insurance must reflect the provisions in the insurance policy or the requirements in the law or rule. When the Department proposed §74.40(e), which states that the certificate of insurance must provide 30 days notice, the Department expected that the certificate of insurance would reflect the 30 day notice provisions in the policy or endorsement and this rule. There was no intention that the certificate of insurance would conflict with them. Also, while some insurers may have some standard or boilerplate insurance policies that have the statutory minimum of 10 days prior notice of cancellation, the insurers are not prohibited from issuing an endorsement to the policy that would give the Department 30 days notice of cancellation.

Insurance Code §1811.155 allows a person to have a legal right to notice of cancellation of an insurance policy as long as they are named in the policy or an endorsement to the policy and the policy or endorsement or law, including a rule, requires notice to be provided. This is the Department’s purpose and intent by adding this notice requirement to the rule.

In response to the comments that HB 2643 set out the minimum liability coverage amounts but did not include any notice requirements, as previously stated, Insurance Code §1811.155 allows a person to have a legal right to notice of cancellation as long as certain conditions are met. In addition, in response to the comments that the Department’s rulemaking authority is limited, PCI’s reference to “§1302.1011(3)” is not applicable. This section is part of the Air Conditioning and Refrigeration Contractors statute, Texas Occupations Code, Chapter 1302. HB 2643 amended three different statutes.

The Department has not overstepped its rulemaking authority by proposing a rule that sets out the details of the statutory insurance requirements that are placed on the contractors. Texas Occupations Code, Chapter 51 is the Commission’s and the Department’s enabling statute, and §51.203 states: “The commission shall adopt rules as necessary to implement each law establishing a program regulated by the department.”

The Department has similar 30 day cancellation notices in its Towing program and Electrician program. The Department has identified a need to obtain advance notice of cancellation due to bankruptcies and gaps in insurance coverage.

In response to the public comments that proposed §74.40(e) may or could impose unnecessary burdens on insurers, while some insurers may have standard or boilerplate insurance policies that have the statutory minimum of 10 days prior notice of cancellation, the insurers are not prohibited from issuing an endorsement to the policy that would give the Department 30 days advance notice. The insurers would have to get the endorsements approved by the Texas Department of Insurance, but the Department does not anticipate that this process would be burdensome since the endorsement is limited to giving the Department 30 days notice in accordance with the agency’s rules.

In addition, the rules do not put requirements on the insurers; the requirements are on the contractor to obtain an insurance policy that contains a provision or an endorsement that provides the Department with 30 days notice of cancellation. The rules do not require insurers to issue such policies or endorsements to contractors. If the insurer wants to write such business and if the insurer has boilerplate or standardized policies that include the statutory 10 day minimum notice requirement, the insurer would have to have the endorsement approved by the Texas Department of Insurance. The Department assumes this approval process would be part of conducting insurance business and writing coverage for its customers. The requirement is on the contractor to obtain such insurance and presumably would result in insurers obtaining additional business.

In response to the cost issue, the Department assumes the insurers would calculate the risks and costs of including a 30 day notice requirement in the policy or in an endorsement. The public comments received did not identify specific and quantifiable costs in terms of money, time or other resources for providing the 30-day cancellation notice or for calculating the risks and costs associated with providing such notice. The Department assumes these activities would be part of conducting insurance business.

In response to the public comment that the contractor, instead of the insurer, should provide the Department with notice of policy cancellation, while this would be ideal, this is not a realistic approach. More than likely, the contractor will not notify the Department that the insurer cancelled the contractor’s insurance policy or that the contractor cancelled its policy or stopped paying premiums, especially since the contractor is required to have insurance to obtain and maintain a registration to operate in the state.

In response to these public comments, the Department has not deleted §74.40(e) or the 30-day notice time period but has amended this subsection to address the public comments. The Department has clarified §74.40(e) by stating that the insurance requirement is on the contractor applicant or registrant to obtain an insurance policy or endorsement that contains the required 30-day notice provision. The Department has also clarified that the insurance policy or endorsement, as required by this rule, must give the department 30 days advance notice of cancellation.

At its May 16, 2012, meeting, the Elevator Advisory Board recommended that the proposed rules be adopted as published, with changes to §74.40 based on the public comments received and the Department’s recommendations. At its May 29 and 30, 2012, meeting, the Commission considered the proposed rules and the public comments received. The Commission adopted the repeal of the existing rules at Chapter 74 as proposed, and adopted the proposed new rules at Chapter 74 as proposed, with changes to §74.40 based on the public comments received and the Elevator Advisory Board’s and the Department’s recommendations.

The repeal is adopted under Texas Occupations Code, Chapter 51 and Texas Health and Safety Code, Chapter 754, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement this chapter or a law establishing a program regulated by the Department.

The statutory provisions affected by the adopted repeal are those set forth in Texas Occupations Code, Chapter 51 and Texas Health and Safety Code, Chapter 754. No other statutes, articles, or codes are affected by the adopted repeal.

§74.1. Authority.
§74.10. Definitions.
§74.20. Inspector Registration Requirements.
§74.25. Contractor Registration Requirements.
§74.26. Reporting Requirements--Contractor.
§74.30. Exemptions.
§74.50. Reporting Requirements--Building Owner.
§74.55. Reporting Requirements--Inspector.
§74.60. Standards of Conduct for Inspector or Contractor Registrants.
§74.65. Advisory Board.
§74.70. Responsibilities of the Building Owner.
§74.75. Responsibilities of the Inspector.
§74.80. Fees.
§74.85. Responsibilities of the Department.
§74.90. Sanctions.
§74.100. Technical Requirements.

This agency hereby certifies that the repeal 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 June 11, 2012.

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

The new rules are adopted under Texas Occupations Code, Chapter 51 and Texas Health and Safety Code, Chapter 754, which authorizes the Commission, the Department’s governing body, to adopt rules as necessary to implement this chapter or a law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapter 51 and Texas Health and Safety Code, Chapter 754. No other statutes, articles, or codes are affected by the adoption.

§74.1. Authority.

The sections in this chapter are promulgated under the authority of the Texas Health and Safety Code, Chapter 754, Subchapter B, and Texas Occupations Code, Chapter 51.

§74.10. Definitions.

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

(1) The Act--Texas Health and Safety Code, Chapter 754, Elevators, Escalators, and Related Equipment.

(2) Altered Equipment--Any changed equipment, including its parts, components, and/or subsystems, other than maintenance, repair, or replacement. However, the term does include any repairs and replacements performed as part of any alteration(s).

(3) Code Providers—

(A) ASCE--American Society of Civil Engineers;

(B) ASCE 21--Automated People Mover Standards; and

(4) ASME A17.1--The ASME A17.1/CSA B 44-07 - “Safety Code for Elevators and Escalators” as adopted in §74.100.

(5) ASME A17.2--The currently published edition of “The Guide for Inspection of Elevators, Escalators, and Moving Walks”.

(6) ASME A17.3--The ASME A17.3-2002, “Safety Code for Existing Elevators and Escalators.”

(7) ASME A18.1--The ASME 18.1, “Safety Standards for Platforms Lifts and Stairway Chairlifts” as adopted in §74.100.

(8) Automated People Mover (APM)--A guided transit mode with fully automated operation, featuring vehicles that operate on guideways with exclusive right of way.

(9) Building 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 this chapter and the Act, an owner may designate an agent.

(10) Commission--The Texas Commission of Licensing and Regulation.

(11) Contractor--A person, partnership, company, corporation, or other entity engaging in the installation, alteration, repair, or maintenance of equipment. The term does not include an employee of a contractor.

(12) Delay--Postponement of compliance with a requirement of the applicable ASME Safety Codes or ASCE Standard as adopted in §74.100, for a specific period of time.

(13) Department--The Texas Department of Licensing and Regulation.

(14) Executive Director--The executive director of the department.

(15) Existing Equipment--Equipment installed or altered before September 1, 1993.

(16) Inspection report--A department-approved form used by the inspector to report the inspection results of one unit of equipment.

(17) Inspector--A person engaged in the inspection of equipment for the purpose of determining compliance with this chapter and adopted standards.

(18) New Equipment--Equipment installed or altered on or after September 1, 1993.

(19) Publicly visible area of building--A location that is visible to the public in an elevator car or a common area lobby or hallway and accessible to the public at all times when any elevator is in operation, without the need for the viewer to obtain assistance or permission from building personnel.

(20) Reportable Condition--A condition which exists where a defect requires the equipment to be removed from operation to prevent a risk of serious injury to passengers, operators, or the general public.

(21) Responsible party--The person or persons meeting the experience requirements of the Act and designated by the contractor to attend continuing education in compliance with this chapter.

(22) Variance, New Technology (“new technology variance” )--Deferral of compliance with a requirement of the applicable ASME/ASCE Safety Codes to allow the installation of new technology if the new component, system, sub-system, function or device is found to be equivalent or superior to the standards adopted in §74.100. A new technology variance, once granted, may be applied to all like equipment installed in the state and a separate variance is not required for each installation. A variance applies to only one component, system, sub-system, function, or device. For example, one seeking a variance for a door system, a control system, and a suspension system would be required to file three separate variance applications.

(23) Waiver--Deferral of compliance with a requirement of the applicable ASME Safety Codes for an indefinite period of time.

§74.20. Inspector Registration Requirements.

(a) An applicant registering with the department as an inspector shall:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80; and

(3) submit a copy of both sides of a valid ASME QEI-1 elevator safety inspector certification card.

(b) An applicant must complete an orientation session provided by the department before the registration is issued.

§74.21. Inspector Registration Requirements--Renewal.

To renew an inspector registration, an inspector must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80;

(3) submit a copy of both sides of a valid ASME QEI-1 elevator safety inspector certification; and

(4) complete any mandatory training required by the executive director.

§74.22. Contractor Registration Requirements.

A person registering with the department as a contractor must:

(1) submit a completed application on a department-approved form;

(2) submit proof of general liability insurance, as required in §74.40;

(3) pay the fee required by §74.80; and

(4) designate at least one responsible party who meets the requirements of §74.24.

§74.23. Contractor Registration Requirements--Renewal.

To renew a contractor registration, a contractor must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80;

(3) provide proof of general liability insurance, as required by §74.40; and

(4) designate at least one responsible party who meets the requirements of §74.24 and §74.25.

§74.24. Responsible Party Eligibility Requirements.

(a) A responsible party designated under this chapter must:

(1) have a minimum of three years of experience;

(2) the experience noted in paragraph (1) shall consist of constructing, installing, repairing, maintaining, or testing of equipment as verified in a manner prescribed by the department; and

(3) comply with the continuing education requirements as required in §74.25 to renew a contractor registration.

(b) A responsible party may be added to the contractor registration at any time by providing written notice to the department. The written notice must include evidence that the responsible party meets the requirements of this chapter.

(c) A responsible party may be removed from the contractor registration at any time by providing written notice to the department. In the event that the responsible party is no longer available due to a change in employment, death or disability, or any other reason, the contractor shall within 30 days re-designate a responsible party.

§74.25. Continuing Education.

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

(b) Each responsible party must complete eight (8) hours of continuing education in courses approved by the department.

(c) The continuing education hours must have been completed within the term of the current contractor 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 responsible party may not receive continuing education credit for attending the same course more than once.

(e) The responsible party and the contractor must retain a copy of the certificate of completion for a course for one year after the date of completion.

(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 Health and Safety Code, Chapter 754, Subchapter B, Inspection, Certification, and Registration;

(2) Title 16, Texas Administrative Code, Chapter 74, Elevators, Escalators, and Related Equipment;

(3) ethics, including business practices; or

(4) the technical requirements in §74.100.

§74.30. Exemptions.

This chapter does not apply to:

(1) buildings owned and operated by the federal government;

(2) equipment regulated by a municipal inspection and certification program approved under §74.65(b);

(3) the following structures if access is limited primarily to employees:

(A) equipment in an industrial facility;

(B) grain silos;

(D) bridge towers;

(E) underground facilities; and

(F) dams;

(4) equipment located in a private building of less than three stories that is used exclusively by a labor union, trade association, private club, or charitable organization; and

(5) elevators located in a single family dwelling except as provided by Texas Health and Safety Code, §754.0141.

§74.40. Contractor Insurance Requirements.

(a) A contractor must maintain general liability insurance at all times during a registration period to satisfy proof of financial responsibility of:

(1) not less than $1,000,000 for each single occurrence of bodily injury or death; and

(2) not less than $500,000 for each single occurrence of property damage.

(b) Insurance must be obtained from an insurance provider authorized or eligible to write general liability insurance in Texas pursuant to the Texas Insurance Code.

(c) A contractor applicant or registrant must file with the department a completed certificate of insurance or other evidence satisfactory to the department when applying for an initial registration, renewing a registration, changing a business name or affiliation, and upon request of the department.

(d) A contractor must furnish the name of the insurance carrier, the policy number, and the name, address, and telephone number of the insurance agent with whom the contractor is insured to any customer who requests it.

(e) A contractor applicant or registrant must obtain a general liability insurance policy that contains a provision or an endorsement that gives the department 30 days prior written notice of cancellation.

§74.50.Reporting Requirements--Building Owner.

(a) To obtain a certificate of compliance, the building owner must submit to the department within 60 days of the equipment inspection date, the following items:

(1) the application for certificate of compliance;

(2) a copy of the inspection reports for each unit of equipment;

(3) written documentation to verify that all violations of the applicable ASME Safety Codes or ASCE Standards as adopted in §74.100, cited on the inspection report, are in compliance with §74.70(a)(3);

(4) any application(s) for delay or waiver if applicable; and

(5) all applicable fees.

(b) Requests to delay compliance with the requirements for firefighters’ service until September 1, 2012, must be made on a department approved form and include:

(1) verification that the building owner:

(A) provided written notification of the application to delay compliance with the requirements for firefighters’ service and the plan of compliance to all tenants in the building; and

(B) will provide written notification of the application and the plan of compliance to delay compliance with the requirements for firefighters’ service immediately upon request to any occupants in the building;

(2) the building owner plan of compliance; and

(3) all applicable fees.

(c) The owner shall notify the department, in writing and within 30 days, of equipment that has been placed out of service. The equipment must be placed out of service in accordance with the definition in A17.1, "installation placed out of service."

(d) The owner shall notify the department, in writing and within 30 days, of an elevator that has had alterations converting the equipment to a material lift. The conversion shall comply with the applicable sections of A17.1.

(e) The owner shall notify the department, in writing and within 30 days, of a material lift that has had alterations converting the equipment to an elevator. The elevator must be inspected and brought into compliance with A17.1 as a new installation.

(f) When a delay has been approved, the owner shall notify the department, in writing within 30 days of the date of correction.

§74.55. Reporting Requirements--Inspector.

(a) For new installations, the inspector shall provide a copy of the Equipment Inspection Form to the building owner not later than the 10th calendar day after completing the inspection.

(b) For alterations, the inspector shall provide a copy of the Equipment Inspection Form to the department and the building owner not later than the 10th calendar day after completing the inspection.

(c) Inspectors, by e-mail, fax, letter or telephone, shall report to the department, within 72 hours of discovery, all equipment they encounter that does not have a decal number.

(d) The inspector shall clearly note on the inspection report any equipment found with a reportable condition, and shall report it immediately by submitting a copy of the report to the building owner and by e-mail, fax, letter or telephone to the department within 24 hours.

(e) Inspectors, by e-mail, fax, telephone, letter, or by using the Online Inspection Reporting System, for each piece of equipment inspected, shall report to the department within 72 hours of completing an annual inspection, or an inspection of a new installation:

(1) the inspector’s TDLR registration number;

(2) the ELBI number of the equipment for annual inspections;

(3) the decal number of equipment; and

(4) the date of the inspection.

§74.57. Reporting Requirements--Contractor.

(a) Contractors must submit to the department reports regarding installation, repair, alteration, or maintenance jobs on a format approved by the department.

(1) An initial report is due no later than 60 days from the application date and must include all jobs performed in Texas by the contractor during the two years prior to the application date.

(2) Quarterly reports are due each calendar year in accordance with the following schedule.

(A) 1st quarter--April 30

(B) 2nd quarter--July 31

(D) 4th quarter--January 31 of the next year.

(3) Quarterly reports must only include all jobs performed in the quarter which have not been previously reported to the department.

(b) Contractors are not required to file reports as prescribed under subsection (a) for equipment that is exempt under §74.30 andfor construction-use only elevators.

(c) Contractors shall, by e-mail, fax, letter or telephone, report to the building owner and department, within 24 hours of discovery, all equipment they encounter that has a reportable condition.

§74.60. Responsibilities of the Department.

(a) When issuing certificates of compliance the department shall:

(1) Assure that each certificate includes the decal number, building name, inspector’s registration number, the date of the last inspection, the due date of the next inspection, contact information at the department to report a violation, the executive director’s signature and date, and any other information required by the statute.

(2) Use the following procedures to issue a certificate of compliance:

(A) review inspection report and fees received by the department;

(B) review certification submitted by building owner indicating which code violations have been remedied and which code violations are under contract to be corrected;

(D) notify building owner with a notice of incomplete submittal asking for any missing inspection documents and fees; and

(E) notify building owner of any denied waiver or delay requests and ask for certification that violations have been remedied or under contract to be corrected.

(F) After a determination is made that the building owner submitted an inspection report with the correct amount of filing fees and all deficiencies in the inspection report have been corrected, or under contract to be corrected, or delay or waiver granted, then a certificate of compliance is issued for each unit of equipment.

(b) The department shall provide notification to building owners, architects, and other building industry professionals regarding the necessity of annually inspecting equipment through the department’s website, press releases, and group presentations.

(c) The department shall review and issue a decision on any applications for new technology variances in accordance with this chapter.

(d) The department shall perform the required application and plan review and may approve or deny the application and plans in accordance with this chapter.

(e) The department may periodically review inspection reports to determine compliance with the applicable statutes and administrative rules.

(f) The department may require inspector attendance at periodic rules and/or law update seminars conducted by the department when the executive director determines such seminars to be necessary.

(g) The department may conduct inspector training seminars where attendance by inspectors is not mandatory.

§74.65. Advisory Board.

(a) Board members will serve for staggered three year terms with two regulated industry positions and two consumer positions expiring in each of the first, second, and third years and one consumer position expiring in the third year. Terms shall expire November 1 of the third year of the member’s term.

(b) If with the advice of the Elevator Advisory Board, the executive director determines that the standards of inspection and certification of a municipal inspection and certification program are at least equivalent to those contained in the Act, the municipal ordinance shall apply.

§74.70. Responsibilities of the Building Owner.

(a) The building owner shall:

(1) obtain the services of an inspector registered with the department to perform inspections in accordance with §§74.74 - 74.77 and §74.100;

(2) keep the equipment free from reportable conditions;

(3) have all violations cited on an inspection report:

(A) corrected within 60 calendar days of the date of inspection;

(B) have them under contract to be corrected and all work completed not later than the next inspection due date; or

(b) The owner of the building in which equipment is located shall have such equipment inspected at an interval not to exceed every twelve (12) months to determine compliance with the applicable standards adopted in §74.100.

(c) The owner of the building in which the equipment is located must make available to the department and all elevator personnel all maintenance and inspection records and maintenance control programs for the equipment during the life of the equipment as required by the applicable standards adopted in §74.100. These records and programs shall be available in the building.

(d) The building owner or the owner’s representative must report all accidents, as defined in Texas Health and Safety Code, §754.011, involving equipment to the department, using a department-approved form, within 72 hours of the accident. If the accident results in serious bodily injury or a fatality, the equipment shall be removed from service and shall not be moved (except as necessary to extricate an injured party or effect a life-saving rescue) or returned to service until a representative of the department completes an investigation and issues an approval to return the unit to service.

(e) The building owner shall ensure that all of the tests required by the applicable codes and standards adopted in §74.100 are performed.

(f) If any equipment is determined to have a reportable condition by inspection or other means, the building owner shall notify the department in writing within 24 hours, and shall place the unsafe equipment out of operation until repairs to correct the reportable condition(s) are completed. After repairs have been completed, the building owner shall have the equipment re-inspected and re-certified and submit written verification to the department that the reportable condition has been corrected before returning the equipment to service.

(g) New equipment installations must have plans reviewed by the department and must be inspected and tested to determine their safety and compliance with the requirements of the codes and standards as adopted in §74.100 before being placed in service. The equipment shall be free of any violations, unless a waiver, delay or new technology variance has been granted by the department in writing, before being placed in service.

(h) Altered equipment must have plans reviewed by the department and must be inspected and tested to determine its safety and compliance with the requirements of the codes and standards as adopted in §74.100 before being placed back in service. The equipment shall be free of any violations, unless a waiver, delay or new technology variance has been granted by the department in writing, before being placed back into service.

(i) Equipment must be tested to determine its safety and compliance with the requirements of the codes and standards as adopted in §74.100.

(j) The building owner must obtain a yearly certificate of compliance from the department evidencing that each unit of equipment in the building is in compliance with the Act and all applicable rules and standards. The building owner must have a current certificate of compliance in order to operate equipment located in the building.

(k) The building owner must display the current certificate of compliance in the following locations:

(1) if the certificate relates to an elevator--

(A) inside the elevator car not more than 7’0” or less than 3’0” above the finished car floor;

(B) outside the elevator car in the main elevator lobby within 10 feet of the elevator call button; or

(i) accessible to the public without assistance or permission during all hours in which any elevator is in operation; and

(ii) identified by a plaque mounted in the elevator car or within 10 feet of the elevator call button in the main elevator lobby. The font size for letters on the plaque shall be at least 18 and the plaque must state that the elevator is regulated by the Texas Department of Licensing and Regulation and include the department’s telephone number 1-800-803-9202 and the building management’s telephone number.

(2) if the certificate relates to an escalator--in a common area lobby or hallway location that is:

(A) accessible to the public without assistance or permission during all hours in which any escalator is in operation; and

(B) identified by a plaque mounted within 10 feet of entry or exit of escalator in the main escalator lobby. The font size for letters on the plaque shall be at least 18 and the plaque must state that the escalator is regulated by the Texas Department of Licensing and Regulation and include the department’s telephone number 1-800-803-9202 and the building management’s telephone number.

(3) if the certificate relates to a chairlift, platform lift, automated people mover operated by cables, moving sidewalk, or related equipment--on the box containing the control circuitry.

(l) The building owner must display an inspection report at the location defined in subsection (k), selected by the owner, until a current certificate of compliance is issued by the executive director.

(m) The building owner must have equipment re-inspected and re-certified if the equipment:

(1) has been altered;

(2) has been determined to have a reportable condition;

(3) has had any alteration made to the interior of elevator car enclosures or flooring; or

(4) inspection report shows an existing violation has continued longer than permitted in a delay granted by the executive director.

(n) The building owner shall have copies of all current department issued waivers, delays and new technology variances posted in the machine room/machinery space in a readily accessible and visible location available to elevator personnel.

§74.72. Standards of Conduct for Inspector or Contractor Registrants.

(a) The provisions in this section apply to both inspectors and contractors, except where noted.

(b) Competency. The registrant, as applicable, shall be knowledgeable of and adhere to the Act, this chapter, the ASME Safety Codes or ASCE Standards as adopted in §74.100, and all procedures established by the department for equipment inspections or performance of a contract to install, alter, repair, or maintain equipment. It is the obligation of the registrant to exercise reasonable judgment and skill in the performance of equipment inspections or performance of a contract to install, alter, repair, or maintain equipment.

(c) Integrity. A registrant shall be honest and trustworthy in the performance of equipment inspections or performance of a contract to install, alter, repair, or maintain equipment, 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. The registrant shall accurately and truthfully represent to any prospective client his/her capabilities and qualifications to perform the services to be rendered.

(d) Interest. The primary interest of the registrant is to ensure compliance with the Act, this chapter, and the ASME Safety Codes or ASCE Standards adopted in §74.100, and all procedures established by the department. The registrant’s position, in this respect, should be clear to all parties concerned while conducting equipment inspections or completing the performance of a contract to install, alter, repair, or maintain equipment.

(e) Conflict of Interest. A registrant is obliged to avoid conflicts of interest and the appearance of conflicts of interest. A conflict of interest exists when an inspector performs or agrees to perform equipment inspections for a building in which he has a financial interest, whether direct or indirect. A conflict of interest also exists when a registrant’s professional judgment and independence are affected by his/her family, business, property, or other personal interests or relationships.

(f) Specific Rules of Conduct. A registrant 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, this chapter, or the standards adopted by the commission;

(2) knowingly furnish inaccurate, deceitful, or misleading information to the department, a building owner, or other person involved in equipment inspections or equipment contracts;

(3) state or imply to a building owner that the department will grant a delay or waiver;

(4) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing equipment inspections or completing an equipment contract;

(5) perform equipment inspections or complete an equipment contract in a negligent or incompetent manner;

(6) perform equipment inspections in a building or facility in which the inspector registrant is an owner, either in whole or in part;

(7) perform equipment inspections in a building or facility wherein the registrant, for compensation, participated in obtaining an equipment contract for the building;

(8) indulge in advertising that is false, misleading, or deceptive;

(9) misrepresent the amount or extent of prior education or experience to any client; or

(10) hold out as being engaged in partnership or association with any person unless a partnership or association exists in fact.

(g) An inspector may not perform inspections upon equipment for which the inspectors’ employer also has a contract to perform installations, maintenance, repairs, replacements or alterations on that equipment.

(h) A registrant shall withdraw from employment when it becomes apparent that it is not possible to faithfully discharge the duty and performance of services owed the client. A registrant shall provide reasonable notice to the client of the registrant’s withdrawal.

(i) An inspector must attend all mandatory training required by the executive director.

(j) A registrant shall notify the department in writing within 30 days of any changes to information submitted on the application or renewal application.

§74.74. Responsibilities of the Inspector--Inspection Procedures.

(a) The inspector must inspect all equipment for compliance with the applicable ASME Safety Codes or ASCE Standards as adopted in §74.100.

(b) Inspectors must use the currently published edition of ASME A17.2, and the “Guide for Inspection of Elevators, Escalators, and Moving Walks” to conduct inspections and witness tests for compliance with the ASME Safety Codes or ASCE Standards adopted in §74.100.

(d) The inspector and the building owner must sign and date the inspection report.

(e) The inspector shall not perform any of the tests.

(f) On new or altered equipment installations, the inspector may perform an inspection prior to the installation being completed. However, on these installations the department will only accept inspection reports for final inspections performed by the inspector after the installation is completed.

(g) For new installations or alterations to existing equipment, the inspector shall verify that approved applications and plans are on the site as specified in §74.111 (b)(3) and shall not proceed with the inspection without the approved application and plans.

(h) The inspector shall verify that the installation or alterations comply with the approved application and plans.

(i) New or altered units that fail to comply with the approved application and plans shall not be placed in-service without the prior written approval of the department.

(1) The inspector shall compare the installation to the approved application and plans.

(2) The inspector shall not allow any installation that deviates from the approved application and plans to be placed into operation without the specific written authorization of the department.

§74.75. Responsibilities of the Inspector--Department Forms.

(a) The inspector must use current department-approved forms for reporting inspections.

(b) The department forms shall be filled out completely, and shall be used to report the inspections of existing equipment and final inspections of new or altered equipment.

(c) The inspector must list all violations of the technical requirements by code number and code edition for each unit inspected, and include a written description of the violation on the department form. If the technical requirements refer to another code, the inspector must list both code numbers and include a written description of the violation.

(d) The inspector may not use the department equipment inspection form to report the results of an inspection to the owner of equipment that is exempt under §74.30 and for construction-use only elevators.

§74.76. Responsibilities of the Inspector--Inspectors Equipment Test Tags.

(a) The inspector must purchase test tags from the department and shall be the person who attaches these tags to the inspected equipment.

(b) The inspector shall inscribe all required information on each department test tag. Department test tags shall not be replaced until after all date and signature spaces on the tag are filled.

(c) Upon completion of the initial acceptance test, department test tags shall be conspicuously attached to each individual piece of equipment on or adjacent to the equipment controller or main line disconnect.

(d) All devices and adjustments required to be sealed by the adopted standard shall be sealed with wire rope and lead seal by the inspector witnessing the test(s). There shall be no need to replace the seal unless it is broken. If a seal is broken, an inspector shall witness the test and provide a seal as prescribed in this subsection prior to the unit being returned to service. The lead seal shall be crimped onto the wire rope using a crimping tool bearing the department’s seal and the crimping tool number assigned to the inspector. An inspector may use the required crimping tool to seal lead seals provided by the manufacturer at the factory as long as the assigned number is legible.

(e) Inspector’s equipment may be purchased from the department for:

(1) $200 per 100 test tags (sold in multiples of 100); and

(2) $10 per 100 wire ropes and lead seals (sold in multiples of 100).

(f) The inspector shall verify that contractor’s test tags are placed on the equipment in conformance with the technical requirements adopted in §74.100.

§74.77. Responsibilities of the Inspector--Inspectors Equipment Decals.

(a) Each unit of equipment shall be identified with a unique identification number decal issued by the department, which the inspector must affix to the upper right hand corner of the control panel. The decal shall remain on the control panel for the life of the equipment.

(b) An additional department decal shall not be affixed to equipment that has a current department decal displayed.

(c) All correspondence and inspection reports shall reference the decal number and building ID number, as reflected on the certificate of compliance.

(d) If an inspector places a new decal on a unit of equipment to replace a lost or destroyed decal, the inspector must report the equipment’s location, old decal number, and new decal number to the department within ten calendar days of placing the new decal number upon the equipment.

§74.78. Responsibilities of the Contractor--Compliance with Plan Review.

(a) The contractor shall comply with the requirements for plan review as set forth in this chapter.

(b) The contractor shall provide the inspector a copy of the approved application and plans and, upon completion of the inspection, leave a copy of the approved application and plans in the machine room, machine space, control room or control space.

§74.80. Fees.

(a) Inspector Registration Fees.

(1) Original application--$50

(2) Renewal application--$50

(3) Revised/Duplicate registration card--$25

(b) Certificate of Compliance Filing Fees.

(1) Filing fees submitted within 60 days of the equipment inspection date: $20 per unit of equipment, along with a copy of the inspection report.

(2) Late filing fees: $10 per unit of equipment for every 30 day period if the inspection report, filing fees, and verification about correcting deficiencies in the inspection report are filed after the 90th day from the equipment inspection date.

(3) Revised/Duplicate Certificate Fee--$25 per certificate

(1) $50 for each violation of the ASME Safety Codes or ASCE Standards as adopted in §74.100 per unit of equipment requested to be waived or delayed.

(2) Fees shall be charged and collected by the department for a waiver or delay application for an institution of higher education.

(d) Contractor Registration Fees.

(1) Original application--$115

(2) Renewal application--$115

(3) Revised/Duplicate registration card--$25

(e) Department Fees, Travel and Per Diem.

(1) The fee for department personnel to disconnect power or lockout equipment in a building shall be $200 per hour.

(2) The fee for department personnel to reconnect power or unlock equipment in a building shall be $200 per hour.

(3) Travel and per diem costs shall be reimbursed by the building owner in accordance with the current rate as established in the current Appropriations Act.

(4) The department shall present a billing statement to the building owner or representative after disconnecting the power or lockout that is payable upon receipt unless the department receives in writing verification that the expenses would be paid no later that the 10th day after the date power is reconnected or equipment is unlocked.

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

(g) New Technology Variance Fees.

(1) Application fee--$2,500

(2) Fee to file an appeal of a denial of an application--$200

(h) Fees for Plan Reviews.

(1) The plan review fee for the installation or alteration of equipment included in a contract shall be calculated as follows:

(A) $200 for each unit of equipment for which a decal is required; and

(B) the maximum fee shall not exceed $5,000.

(2) The fee to review plans on an expedited basis is $1,000 per unit of equipment included in a contract for which a decal is required. There is no maximum fee or cap for expedited reviews.

(i) Fees for Amendments to Previously Approved Plan Reviews.

(1) The plan review fee for amendments to previously approved plan reviews where the installation or alteration of equipment included in a contract has not been completed shall be as follows:

(A) $100 per unit of equipment for which a decal is required; and

(B) the maximum fee shall not exceed $2,500.

(2) The fee to review amendments to previously approved plan reviews on an expedited basis is $1,000 per unit of equipment included in a contract for which a decal is required. There is no maximum fee or cap for expedited reviews.

§74.90. Administrative Penalties and Sanctions.

If a person violates Texas Health and Safety Code, Chapter 754, or a rule, or order of the executive director or commission relating to the Act, proceedings may be instituted to impose administrative sanctions and/or recommend administrative penalties in accordance with the Act or Texas Occupations Code, Chapter 51, and 16 Texas Administrative Code, Chapter 60 and Chapter 74.

§74.100. Technical Requirements--ASME and ASCE Codes.

(a) The commission adopts the standards for the installation, maintenance, repair, replacement, alteration, testing, operation, and inspection of equipment that are contained in the following codes: ASME A17.1-2007/CSA B44-07 as amended in subsection (b), ASME A17.3-2002, ASME A18.1-2005 and ASCE Codes 21.

(b) The following amendments shall be made to ASME A17.1-2007/CSA B44-07:

(1) Delete requirement 1.2.1(c) and all references to A17.7 within the adopted standard, preface and appendices.

(2) Delete requirement 8.10.2.2.1(q) emergency or standby power operation.

(3) Delete requirement 8.10.2.3.2(l) emergency or standby power alterations.

(4) Delete requirement 8.10.3.3.2(l) emergency or standby power alterations.

(5) Delete 8.11.2.2.7 standby or emergency power operation.

(6) Delete requirement 8.11.2.3.5 emergency and standby power operation.

(7) Delete requirement 8.11.3.2.3(f) standby power operation.

(8) Delete the reference to ASME A17.3 contained within § 9.1.

(9) Delete Appendix E in its entirety.

(1) ASME A17.1-2007/CSA B44-07 and the amendments in subsection (b) shall be effective on September 1, 2008.

(2) ASME A18.1-2005 shall be effective September 1, 2008.

(3) ASME A17.3-2002 continues to be in effect.

§74.110. Plan Review--Required.

(a) Prior to beginning the installation or alteration of equipment at any individual location, the contractor shall submit and have approved an application and plans describing the installation or alteration.

(b) The contractor shall submit two (2) copies of the plans to be reviewed to the department. These copies shall be submitted in a manner prescribed by the department.

§74.111. Plan Review--New Equipment.

(a) A contractor must submit for review an application and plans for the installation of new equipment.

(b) To apply for a plan review for the installation of new equipment, a contractor must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80; and

(3) submit layout drawings as specified in the A17.1 code adopted in §74.100 for the specific type of equipment to be installed. These layout drawings shall also include:

(A) the rated speed of the equipment in feet per minute;

(B) the rated capacity of the equipment in pounds;

(D) elevation drawings of the hoistway, runway or wellway; and

(E) plan drawings indicating the arrangement of the equipment in a machine room, machine space, control room or control space.

§74.112. Plan Review--Alteration of Existing Equipment.

(a) A contractor must submit for review an application and plans for the alteration of existing equipment.

(b) To apply for a plan review for the alteration of existing equipment, a contractor must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80; and

(3) submit a written description of the scope of work, which shall include a description of each alteration to be performed.

(c) In addition to submitting the items under subsection (b), a contractor must submit layout drawings as specified in §74.111(b)(3) and the A17.1 code adopted in §74.100 for the specific type of equipment, if the alteration described in subsection (b)(3) results in one or more of the following changes:

(1) the rated speed of the equipment in feet per minute;

(2) the rated capacity of the equipment in pounds;

(3) the total travel of the equipment in feet and inches;

(4) the classification of the equipment, such as passenger elevator to freight elevator or freight elevator to passenger elevator; or

(5) the driving machine is re-located.

§74.113. Plan Review--Department Approval or Denial.

The department shall conduct a plan review of the installation of new equipment or the alteration of existing equipment and may:

(1) approve the application and plans as submitted;

(2) approve the application and plans with conditions; or

(3) deny the application and plans and will provide the applicant with the reasons for denial.

§74.114. Plan Review--Amendments.

(a) If the installation or alteration has already been completed, any changes to an approved application and plans for the installation of new equipment or the alteration of existing equipment must be resubmitted in accordance with §74.111 or §74.112.

(b) If the installation or alteration has not been completed, a contractor may amend a previously approved application and plans for the installation of new equipment or the alteration of existing equipment.

(c) To apply for a plan review of any amendments to a previously approved plan review under subsection (b), a contractor must:

(1) submit a completed application on a department-approved form;

(2) pay the fee required by §74.80; and

(3) submit a written description of the scope of work which shall include a description of each alteration to be performed.

(d) In addition to submitting the items under subsection (c), a contractor must submit layout drawings as specified in §74.111(b)(3) and the A17.1 code adopted in §74.100 for the specific type of equipment, if the alteration described in subsection (c)(3) results in one or more of the following changes:

(1) the rated speed of the equipment in feet per minute;

(2) the rated capacity of the equipment in pounds;

(3) the total travel of the equipment in feet and inches;

(4) the classification of the equipment, such as passenger elevator to freight elevator or freight elevator to passenger elevator; or

(5) the driving machine is re-located.

§74.115. Plan Review--Expedited Review.

(a) A contractor may request an expedited review of the plans submitted under §§74.111, 74.112, and 74.114 by payment of the expedited review fee required by §74.80.

(b) The department may process plan reviews on an expedited basis and issue an approval or denial of those plans, as described under §74.113, within 5 business days after a complete submission by the contractor.

§74.120. New Technology Variances--Application for Variance.

(a) Prior to the installation of any device, equipment or technology not permitted by the currently adopted standards, a contractor or an equipment manufacturer (“applicant”) must submit an application for new technology variance for approval by the department.

(b) An application for a new technology variance shall contain the following, if applicable:

(1) an enumeration and description of all the requirements of the adopted standard for which a new technology variance is being requested;

(2) documentary evidence to support a claim of equivalence or superiority to the requirements of the adopted standard;

(3) documentary evidence that the new technology is being or may be considered by the ASME code committee(s) for inclusion in a future standard;

(4) an estimated time frame for the approval of the new technology by the ASME code committee(s);

(5) any additional supporting evidence deemed by the applicant to be necessary to assist in making a determination; and

(6) the new technology variance application fees outlined in §74.80.

§74.121. New Technology Variances--Department Approval or Denial.

(a) The applicant for a new technology variance shall be notified of the department’s decision in writing.

(b) If the new technology variance is approved, the department notification will itemize the specific code requirement deviations for which the variance(s) are approved.

(c) If the new technology variance is denied, the applicant may appeal the department’s decision in accordance with §74.122.

§74.122. New Technology Variances--Appeal of Variance Denial.

(a) A denial of a new technology variance application may be appealed to the director of compliance, or his designee, within 30 calendar days from notification of the department’s decision.

(b) The appeal to the director of compliance, or his designee, must be submitted in writing along with payment of the applicable appeal fee under §74.80. Supporting documentation such as the variance application and all documentation filed to support the application may be submitted for consideration.

(c) When a variance review determination has been made by the director of compliance, or his designee, the applicant shall be advised in writing of the determination.

(d) A denial of a new technology variance application from the director of compliance, or his designee, may be appealed to the executive director, or his designee, within 30 calendar days of notification of the director of compliance’s decision.

(e) The appeal to the executive director must be submitted in writing. Supporting documentation such as the variance application and all documentation filed to support the application may be submitted for consideration. No additional appeal fees must be submitted.

(f) When a variance review determination has been made by the executive director, the applicant shall be advised in writing of the determination.

(g) The decision of the executive director regarding the variance application is final and binding on the applicant.

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 June 11, 2012.

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

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Elevators, Escalators and Related Equipment Safety and Licensing Justification for Repeal and Adopted Rules

Elevators, Escalators and Related Equipment Safety and Licensing
Justification for Repeal and Adopted Rules