Proposed Administrative Rules

Chapter 75.  Air Conditioning and Refrigeration
Proposal Filed:  January 12, 2018 – Published in the Texas Register:  January 26, 2018
Deadline for Public Comment:  February 26, 2018

Underlined text is new language.
[Strike-thru text] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 75, §§75.10, 75.20, 75.21,75.22, 75.23, 75.28, 75.29, 75.30, 75.70, 75.71, 75.73, 75.80, and proposes new rules at 16 TAC, §§75.120 - 75.123, regarding the Air Conditioning and Refrigeration program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The proposed rules implement changes from House Bill 3029, 85th Legislature, Regular Session (2017), which adds the definition of certification training program, certified technician, and distinguishes the certified legacy technician. The proposed rules include editorial corrections. The proposed rules are necessary to implement House Bill 3029.

SECTION-BY-SECTION SUMMARY

The proposed amendments to §75.10 adds the definition “certification training program”, “certification training program provider”, “certified technician”, and “certified technician (legacy)”. The section is also renumbered accordingly.

The proposed amendments to §75.20 updates the language for clarity.

The proposed amendments to §75.21 updates the language for ease and understanding.

The proposed amendments to §75.22 updates the language for clarity.

The proposed amendments to §75.23 makes editorial corrections.

The proposed amendments to §75.28 establishes the certified technician designation.       

The proposed amendments to §75.29 adds air conditioning and refrigeration technician certification to the renewal requirements.

The proposed amendments to §75.30 exempts certain persons who are enrolled in the certification training program.

The proposed amendments to §75.70 adds certified technicians to the section and makes editorial corrections.

The proposed amendments to §75.71 adds certified technicians to the responsibilities of the contracting company and makes editorial corrections.                                                                       

The proposed amendments to §75.73 adds the responsibilities for certified technicians and makes editorial changes.

The proposed amendments to §75.80 creates an application and renewal fee for a certified technician; approval of a certification training program fee; and the registered technician renewal fee.  

The proposed new §75.120 creates application and eligibility requirements for the certified technician.

The proposed new §75.121 establishes examination requirements for certified technicians.

The proposed new §75.122 details certification training program requirements.

The proposed new §75.123 establishes certification training program provider responsibilities.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that in the first five years the proposed rules are in effect, there will be estimated additional costs to the State as a result of enforcing or administering the proposed rules. The anticipated cost for the first fiscal year is zero; for the second fiscal year, $80,226; for the third, $112,210; and for the fourth and fifth fiscal years, $108.822. These estimates assume the Department will need to hire up to two FTEs in order administer the program and respond to customer service inquiries.

Mr. Francis has determined that in the first five years the proposed rules are in effect, there will be an estimated increase of revenue to the State as a result of enforcing or administering the proposed rules. The estimated additional revenue for the first fiscal year is zero; for the second fiscal year, $32,550; for the third, $52,425; for the fourth, $56,760; and for the fifth fiscal year, $61,575.

Mr. Francis has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal implications for local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement, under Government Code §2001.022. 

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit from a more skilled and qualified labor force in the air conditioning and refrigeration industry.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there will be economic costs to persons who desire to become certified technicians. An individual wishing to become a certified technician pursuant to the provisions of House Bill 3029 and these rules will be required to pay an application fee of $50 and an annual renewal fee of $35. Additionally, a provider of a certification training program will be required to pay an annual fee of $90 for review and approval of the program.

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

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. 

Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule.  There are exceptions for certain types of rules under §2001.0045(c).

Because the proposed rules are necessary to implement legislation, namely House Bill 3029 (85th R.S. 2017), the agency is not required to take any further action under Government Code §2001.0045. See Government Code §2001.045(c)(9).

GOVERNMENT GROWTH IMPACT STATEMENT 

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules.  For each year of the first five years the rule will be in effect, the agency has determined the following:

(1) The proposed rules do not create a government program. These proposed rules implement House Bill 3029, which creates the certified technician certification within the Department’s existing Air Conditioning and Refrigeration program.
(2) Implementation of the proposed rules will require the creation of an estimated two new employee positions.
(3) Implementation of the proposed rules will not require an increase in future legislative appropriations to the agency.
(4) The proposed rules require an increase in fees paid to the agency. House Bill 3029 requires applicants to prove experience and educational requirements, and to pass a Department-developed examination. Under the law prior to House Bill 3029, applicants were merely required to register with the Department and pass an examination recognized, but not developed, by the Department. These increased requirements necessitate an increased application fee for certified technicians. Additionally, because the Department must ensure the integrity of certification training programs offered to prospective certified technicians, a fee is needed to fund the agency’s review and audits of these training programs.
(5) The proposed rules create new regulations §75.120 - §75.123.  The Technician Certificate is a new license type as well as Training Program Providers. The Training Program Providers will have to apply for approval and renew annually.
(6) The proposed rules expand and limit existing regulations. The proposed rule limits the existing certified registered technician (legacy). No more initial registrations of this type will be issued and the current registrants may only renew their registration. 
(7) The proposed rules increase the number of individuals subject to the rules’ applicability. The proposed rules require providers of certification training programs to receive approval from the Department. Expanding the scope of the rules in this way is necessary to implement House Bill 3029 effectively.
(8) The proposed rules do not adversely affect this state’s economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Ana Villarreal, Legal Assistant, Texas Department of Licensing Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapter 51, 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 proposal are those set forth in Texas Occupations Code, Chapters 51, and 1302. No other statutes, articles, or codes are affected by the proposal.

§75.10. Definitions .

The following words and terms have the following meanings as used in this chapter:

(1) - (9) (No change.)

(10) Certification training program--A program of education and training, further addressed in §75.283, consisting of a combination of classroom instruction and supervised practical experience.

(11) Certification training program provider--A person providing or offering to provide a certification training program.

(12) Certified technician--A person granted an air conditioning and refrigeration technician certification by the department pursuant to §75.281, and §1302.5036 and §1302.5055 of the Act.

(13) Certified technician (legacy)--A person granted a certified technician designation by the department pursuant to §75.28, and §1302.508 of the Act, as continued by House Bill 3029 §18, 85th Leg., R.S. (2017).

(14) [(10)] Cheating--Attempting to obtain, obtaining, providing, or using answers to examination questions by deceit, fraud, dishonesty, or deception.

(15) [(11)] Cryogenics--Refrigeration that deals with producing temperatures ranging from:

(A) - (D) (No change.)

(16) [(12)] Department--The Texas Department of Licensing and Regulation.

(17) [(13)] Design of a system--Making decisions on the necessary size of equipment, number of grilles, placement and size of supply and return air ducts, and any other requirements affecting the ability of the system to perform the function for which it was designed.

(18) [(14)] Direct supervision--Directing and verifying the design, installation, construction, maintenance, service, repair altercation, or modification of an environmental air conditioning, refrigeration, process cooling, or process hearing product or equipment to assure mechanical integrity. Verification may include, but is not limited to:

(A) - (C) (No change.)

(19) [(15)] Employee--An individual who performs tasks assigned by an employer, and who is subject to the employer’s control in all aspects of job performance, except that a licensed air conditioning and refrigeration contactor remains responsible for all air conditioning work he or she performs. An employee's wages are subject to deduction of federal income taxes and social security payments. An employee may be full time, part time, or seasonal. Simultaneous employment with a temporary employment agency, a staff leasing agency, or other employer does not affect an employee's status for the purpose of this chapter.

(20) [(16)] Executive Director--The executive director of the department.

(21) [(17)] Full Time employee--An employee who is present on the job either 40 hours a week, or at least 80% of the time the company is offering air conditioning and refrigeration contracting services to the public, whichever is less.

(22) [(18)] Licensee--An individual holding a contractor’s license of the class and endorsement appropriate to the work performed under the Act and this chapter.

(23) [(19)] Offering to perform--Making a written or oral proposal, contracting in writing or orally to perform air conditioning and refrigeration work, or advertising in any form through any medium that a person or business entity is an air conditioning and refrigeration contractor, or that implies in any way that a person or business entity is available to contract for or perform air conditioning and refrigeration work.

(24) [(20)] Permanent office--Any location, which must be identified by a street address, or other data identifying a rural location, from which a person or business entity conducts the business of an air conditioning and refrigeration contracting company.  A location not open to the public, or not located within the state, may serve as a permanent office so long as the department and consumers have access to the licensee required by §1302.252 of the Act to be employed in each permanent office.

(25) [(21)] Portable--Able to be easily transported and readily used as an entire system, without need for dismantling or assembly in whole or in part, or addition of parts, components, or accessories.

(26) [(22)] Primary process medium--A refrigerant or other primary process fluid that is classified in the current ANSI/ASHRAE Standard 34 as Safety Group A1, A2, B1, or B2.  Safety Groups A3 and B3 refrigerants are specifically excluded.

(27) [(23)] Proper installation and service--Installing, servicing, repairing, and maintaining air conditioning and refrigeration equipment in accordance with:

(A) - (D) (No change.)

(28) [(24)] Registrant--A person who is registered with the department as a technician under the Act and this chapter.

(29) [(25)] Repair work--Diagnosing and repairing problems with air conditioning, commercial refrigeration, or process cooling or heating equipment, and remedying or attempting to remedy the problem. Repair work does not mean simultaneous replacement of the condensing unit, furnace, and evaporator coil.

(30) [(26)] Self-contained--Constructed so that all required parts, components, and accessories of the air conditioning or heating system are included within the same enclosure.

(31) [(27)] System balancing--A process of adjusting, regulating or proportioning air distribution equipment or any activity beyond system testing.

(32) [(28)] System testing--Assessing or measuring the performance of the air distribution equipment or air conditioning and refrigeration duct system through equipment that can be attached externally to the system. Testing does not include opening, adjusting or balancing equipment or ducts or any activity beyond assessing the system through the use of external equipment. Testing does not include testing fire and smoke dampers, 

(33) [(29)] Total replacement of a system--Simultaneous replacement of the condensing unit, the evaporator coil, the furnace, if applicable, and the air handling unit, or replacement of a package system.

§75.20 Contractor Licensing Requirements--Application and Experience Requirements.

(a) To obtain a contractor license, an applicant must:

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

(2) satisfy the requirements of [have the requisite amount of experience as prescribed under] Occupations Code §1302.255 based on the date the application is filed with the department;

(3) - (6) (No change.)

(b) (No change.)

§75.21 Contractor Licensing Requirements--Examinations.

(a) A person must satisfy the requirements of [obtain the requisite amount of experience as prescribed under] Texas Occupations Code §1302.255[,] based on the date the application is filed with the department, prior to taking an examination.

(b) - (d) (No change.)

§75.22 Contractor Licensing Requirements--General.

(a) - (e) (No change.)

(f) A contractor who holds two licenses may have only one endorsement per license [when he has two licenses.] Both licenses must have the same business affiliation and permanent and business addresses.

(g) The insurance requirement for separate licenses may [can] be met with a single policy with limits at least as high as those required for a Class A license. A waiver of insurance for one license automatically applies to both licenses.

(h) (No change.)

§75.23 Contractor Licensing Requirements--Temporary Licenses.

(a) A company owner or officer[,] whose only license holder is no longer available due to death or disability[,]may request a temporary license.

(b) - (e) (No change.)

§75.28 Registered Technician [Registration Requirements]--Certified Technician (Legacy) Designation.

(a) This section applies only to a person who submits an application for a certified technician designation on or before August 31, 2018.

[(a) A registered technician is not required to be certified by the department, and a registrant may perform the same tasks as those performed by a certified technician.]

(b) A registered technician may use the designation “certified technician” after obtaining a certified technician designation from the department [department certification].

(c) (No change.)

§75.29 Registered and Certified Technician [Registration] Requirements--Renewal.

To renew a technician registration or air conditioning and refrigeration technician certification [,with or without the certified technician designation], a person must:

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

(2) submit the required fees.

§75.30. Exemptions.

(a) The Act and this chapter do not apply to those persons exempt under Occupations Code, Chapter 1302, with the following clarifications:

(1) - (5) (No change.)

(6) a student enrolled in a certification training program who is either younger than 18 years of age or is enrolled at a secondary school.

(b) (No change.)

§75.70 Responsibilities of the Contractor/Licensee.

(a) The licensee must:

(1) if affiliated with an air conditioning and refrigeration contracting company, assign the [his] license to one company or one permanent office of the company that will use the license;

(2) (No change.)

(3) use the [his] license for one business affiliation and one permanent office at any one given time;

(4) furnish the department with the licensee’s [his] permanent mailing address and the name, physical address, and telephone number of the air conditioning and refrigeration contracting company through which the licensee provides services;

(5) verify that all work for which the licensee [he] has supervisory responsibility is performed so that mechanical integrity of installed products, system or equipment is maintained, and that all maintenance, service, and repair work has been done properly;

(6) if affiliated with an air condition and refrigeration contracting company, furnish to municipalities a list of authorized agents that may pull permits under the license, and, if subcontracting jobs to other licensed air conditioning and refrigeration contracting companies furnish a list of agents of these license companies that may pull permits under the [his] license;

(7) - (9) (No change.)

(10) not knowingly provide air conditioning and refrigeration work for or on behalf of an unlicensed air conditioning and refrigeration contracting company, or a contracting company that does not have an affiliation with a licensed individual who supervises all air conditioning and refrigeration work as provided by Occupations Code, Chapter 1302, and this chapter; [and]

(11) only use licensed contractors, [or] registered technicians, certified technicians, or students meeting the requirements of §75.30(a)(6) to perform maintenance work; and [.]

(12) (No change.)

(b) (No change.)

(c) The design of a system may not be subcontracted to an unlicensed person, firm or corporation.

(d) (No change.)

(e) The licensee is responsible for all work performed under the licensee’s [his] supervision, regardless of whether the owners, officers, or managers of the air conditioning and refrigeration contracting company allow the licensee the authority to supervise, train, or otherwise control complain with the Act.  

(f) A licensee may not allow another individual to use the licensee’s [his] license for any purpose.

(g) A licensee may not allow any air conditioning and refrigeration contracting company with which the licensee [he] has no business affiliation to use the licensee’s [his]license for any purpose, except as otherwise allowed by this chapter. 

(h) - (j) (No change.)

§75.71 Responsibilities of the Contracting Company.

(a) An air conditioning and refrigeration contracting company [Air Conditioning and Refrigeration Contracting Company] must:

(1-6) (No change.)

(b) - (j) (No change.)

(k) An air conditioning and refrigeration contracting company may only use licensed contractors, [or] registered technicians, certified technicians, or students meeting the requirements of §75.30(a)(6) to perform maintenance work.

§75.73. Responsibilities of Registered and Certified Technicians. [the Technician/Registrant]

(a) A registrant or certified technician must:

(1) provide proper installation and service, and assure the mechanical integrity of work and installations performed [by the registrant];

(2) - (4) (No change.)

(5) not use the designation “certified technician” designated as [he has been] certified by the department pursuant to §75.28 or granted an air conditioning and refrigeration technician certification by the department pursuant to§75.120. [or has certified by examination given by a nationally recognized certification organization, and the individual lists the organization.]

(b) A registrant or certified technician may not allow another individual to use a [his] registration or certificate for any purpose.

(c) A registrant or certified technician may not allow any air conditioning and refrigeration contracting company or any air condition and refrigeration contractor with which he or she is not employed to use a [his] registration or certificate for any purpose, expect as otherwise allowed by this chapter.

(d) A registrant or certified technician must notify the department in writing, within thirty (30) calendar days of any change in permanent mailing address or [, and] telephone number.

(e) Altering a registration or certificate in any way is prohibited and is grounds for imposition of administrative penalties and/or sanctions.

(f) A registered technician is not required to be certified by the department, and a registrant may perform the same tasks as those performed by a certified technician.

§75.80. Fees

(a) - (b) (No change.)

(c) Air Conditioning and Refrigeration Technicians.

(1) Registered technician [Technician registration] application fee is $20.

(2) Registered technician renewal application fee is $20.

[(2) Certified technician designation application fee is $15. This fee is in addition to the technician registration application fee.]

(3) Certified technician application fee is $50.

[(3) Technician registration renewal application fee (with or without the certified technician designation) is $20.]

(4) Certified technician renewal application fee is $35.

(5) Certified technician (legacy) designation application fee is $15.

(6) [(4)] Revised/Duplicate License/Certificate/Permit/Registration--$15.

(d) The application fee for approval or renewal of a certification training program is $90.

(e) [(d)] Late renewal fees for licenses and registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

§75.120. Certified Technician--Application and Eligibility Requirements.

(a) To obtain an air conditioning and refrigeration technician certification, an applicant must:

(1) be at least 18 years old at the time of application;

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

(3) at the time of application, have either:

(A) completed a department-accepted or approved certification training program within the previous 48 months; or

(B) performed 24 months of air conditioning and refrigeration-related work:

(i) under the supervision of a licensed air conditioning and refrigeration contractor; or

(ii) as part of the applicant’s military occupational specialty within the armed forces of the United States;

(4) pass the examination;

(5) submit the required fees; and

(6) complete all requirements, including passing the exam, within one year of the date the application is filed.

(b) An applicant must submit the proper documentation as prescribed by the department to receive credit for the claimed amount and type of classroom instruction and practical experience.

(c) An applicant who receives a certification pursuant to this section may use the designation “certified technician.”

(d) A certification issued under this section expires on the first anniversary of the date of issuance.

§75.121. Certified Technician--Examinations.

(a) A person must satisfy the requirements of Texas Occupations Code §1302.5036, based on the date the application is filed with the department, prior to taking an examination.

(b) A passing grade is 70%.

(c) A person taking an examination must comply with the department’s examination requirements under, Chapter 60, Subchapter E of this title.

(d) Cheating on an examination is grounds for denial, suspension, or revocation of a license and/or an administrative penalty.

§75.122. Certification Training Program Requirements.

(a) A certification training program provider must receive approval from the department before offering or providing a certification training program.

(b) To obtain approval of a certification training program, an applicant shall:

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

(2) pay all applicable fees;

(3) demonstrate that the program includes a total of at least 2,000 hours of a combination of:

(A) classroom instruction at a secondary school, institution of higher learning as defined by §61.003 of the Texas Education Code, or an apprenticeship program accepted by the department; and

(B) practical experience in air conditioning and refrigeration-related work under the supervision of a licensed air conditioning and refrigeration contractor;

(4) provide copies of course material such as textbooks, videos, tapes, handouts, study materials, and any additional documentation; and

(5) provide the names and license numbers of all air conditioning and refrigeration contractors supervising program participants.

(c) Department approval of certification training program is valid for one year, and may be renewed. To renew, a provider shall:

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

(2) pay all applicable fees;

(3) certify that the program continues to meet the requirements of this chapter; and

(4) provide the department with a summary of changes to the curriculum or program materials, and provide copies of course materials upon request from the department; and

(5) provide the names and license numbers of all air conditioning and refrigeration contractors supervising program participants.

(d) The department may deny approval or renewal of a certification training program if a provider is past due on the payment of any administrative penalties, or provides false information on an application.

(e) To determine whether a provider is complying with the requirements of this chapter, department employees and representatives may conduct audits of a provider an any certification training program offered by a provider.

(f) Upon a finding that the certification training program provider has not complied with the requirements of this chapter, or that a certification training program does not meet the requirements of this chapter, the department may rescind approval of a certification training program.

§75.123. Certification Training Program Provider Responsibilities. 

(a) No later than ten (10) days after the completion date of the certification training program, a provider must issue to each participant who completed the program a certificate that includes the following information:

(1) name of the provider and number of the certification training program;

(2) program completion date;

(3) printed name and signature of a provider representative; and

(4) name of the participant.

(b) No later than ten (10) days after completion of the certification training program, a provider must submit an electronic record, in a manner and format prescribed by the department, containing the following information:

(1) name of the provider and number of the certification training program;

(2) program completion date; and

(3) the full name of each participant who completed the program.

(c) A certification training program provider must retain participant completion records for a period of two years after completion of a program.

(d) Upon request, a certification training program provider shall provide information, including copies of specified records, to the department within ten (10) days of the date of the request.

(e) A certification training program provider shall cooperate fully with the department in the investigation of a compliant or performance of an audit.

(f) A certification training program provider may not publish false or misleading advertisements.

(g) Certification training program providers are responsible for the administration of their programs, including the verification of participant attendance and performance. Providers shall ensure that their programs are administered in substantiality the same manner as represented in the application for approval.

(h) Certification training program providers must maintain current contact information on file with the department. This includes, at minimum, a mailing address, phone number, and license numbers of all supervising air conditioning and refrigeration contractors.

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposed rules have 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 12, 2018.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation