JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION

Air Conditioning and Refrigeration

16 TAC Chapter 75, amendments to §§75.10, 75.25, 75.30, 75.70 and 75.110

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to the existing rules at 16 Texas Administrative Code (TAC), Chapter 75, §§75.10, 75.25, 75.30, 75.70 and 75.110, regarding the Air Conditioning and Refrigeration program, without changes to the proposed text as published in the December 16, 2016, issue of the Texas Register (41 TexReg 9838). The rules will not be republished.

The adopted amendments are necessary to: (1) clarify perceived industry confusion surrounding what constitutes a “portable” or “self-contained” heating or air conditioning product; (2) require licensees to verify the practical experience of applicants; and (3) remove outdated language.

The adopted amendments to §75.10 add definitions for “portable” and “self-contained.” Editorial changes were also made to renumber the section accordingly.

The adopted amendments to §75.25 remove outdated language and make editorial corrections.

The adopted amendments to §75.30 set forth licensure exemptions for persons engaging in air conditioning and refrigeration contracting regarding certain portable or self-contained air conditioning and heating systems, environmental air conditioning equipment intended for temporary use, and residential refrigerators, freezers, or ice machines.

The adopted amendments to §75.70 impose a duty on an air conditioning and refrigeration contractor to verify the practical work experience of an applicant who has worked under that person’s supervision.

The adopted amendments to §75.110 remove outdated language and make editorial corrections.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the December 16, 2016, issue of the Texas Register (41 TexReg 9838). The deadline for public comments was January 17, 2017. The Department received a comment from one individual on the proposed rules during the 30-day public comment period.

Comment--The commenter suggested eliminating the continuing education requirement for those that have been in the industry for ten years or more.

Department Response --The air conditioning and refrigeration industry is constantly changing through advancements in technology, best practices and statutory updates. Therefore, the continuing education requirement is critical in maintaining a high standard for licensees and the public they serve. The Department did not make any changes to the proposed rules based on this comment.

The Air Conditioning and Refrigeration Contractor Advisory Board (Board) met on March 8, 2017, to discuss the proposed amendments and the public comment received. The board recommended adopting the proposed amendments without changes. At its meeting on April 5, 2017, the Commission adopted the proposed rules without changes as recommended by the Board.

The new rules are adopted under Texas Occupations Code, Chapters 51 and 1302, 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 adoption are those set forth in Texas Occupations Code, Chapters 51 and 1302. No other statutes, articles, or codes are affected by the adoption.

§75.10. Definitions.

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

(1) Act--Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors.

(2) Advertising or Advertisement--Any commercial message which promotes the services of an air conditioning and refrigeration contractor.

(3) Air conditioning and refrigeration subcontractor--A person or firm who contracts with a licensed air conditioning contractor for a portion of work requiring a license under the Act. The subcontractor contracts to perform a task according to his own methods, and is subject to the contractor's control only as to the end product or final result of his work.

(4) Air conditioning or heating unit--A stand-alone system with its own controls that conditions the air for a specific space and does not require a connection to other equipment, piping, or ductwork in order to function.

(5) Assumed name--As defined in the Business and Commerce Code, Title 5, Chapter 71.

(6) Biomedical Remediation--The treatment of ducts, plenums, or other portions of air conditioning or heating systems by applying disinfectants, anti-fungal substances, or products designed to reduce or eliminate the presence of molds, mildews, fungi, bacteria, or other disease-causing organisms.

(7) Biomedical Testing--The inspection and sampling of ducts, plenums, or other portions of air conditioning or heating systems to test for the presence of molds, mildews, fungi, bacteria, or other disease-causing organisms. The term does not include performing any type of treatment or remediation.

(8) Boiler--As defined in Chapter 755 of the Health and Safety Code.

(9) Business affiliation--The business organization to which a licensee elects to assign his license.

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

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

(A) -250 degrees F to Absolute Zero (-459.69 degrees F);

(B) -156.6 degrees C to -273.16 degrees C;

(C) 116.5 degrees K to 0 degrees K; or

(D) 209.69 degrees R to 0 degrees R.

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

(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.

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

(A) personal inspection of a job;

(B) reviewing a checklist or report completed by a person who performed some or all of the work on a job; or

(C) reviewing an inspection report of the job made by a municipal mechanical inspector.

(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 contractor 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.

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

(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.

(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.

(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.

(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.

(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.

(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.

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

(A) applicable municipal ordinances and codes adopted by a municipality where the installation occurs;

(B) the applicable edition of the Uniform Mechanical Code as adopted under §75.110; or the applicable edition of the International Mechanical Code as adopted under §75.110 and International Fuel Gas Code, in areas where no code has been adopted; or the International Residential Code, as applicable;

(C) the manufacturer's specifications and instructions; and

(D) all requirements for safety and the proper performance of the function for which the equipment or product was designed.

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

(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.

(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.

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

(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.

(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.

§75.25. Continuing Education.

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

(b) To renew an air conditioning and refrigeration contractor license under Texas Occupations Code, Chapter 1302, Subchapter F, a licensee must complete eight hours of continuing education in courses approved by the department, including one hour of instruction in Texas state law and rules that regulate the conduct of licensees.

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

(e) A licensee must retain a copy of the certificate of completion for a course for one year after the date of completion. In conducting any inspection or investigation of the licensee, the department may examine the licensee's records to determine compliance with this subsection.

(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 Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors;

(2) Title 16, Texas Administrative Code, Chapter 75, Air Conditioning and Refrigeration Administrative Rules;

(3) the International Mechanical Code, the Uniform Mechanical Code, or other applicable codes;

(4) ethics;

(5) business practices; or

(6) technical requirements.

§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) persons who conduct air conditioning and refrigeration contracting, who are employed by a regulated electric or gas utility facility and perform those services in connection with the utility business in which the person is employed;

(2) a person who engages in air conditioning and refrigeration contracting in a building owned solely by the person as the person's home and who does not engage in the occupation of air conditioning and refrigeration contracting for the general public. This exemption applies only to the homeowner and not to others who may attempt to assist the homeowner;

(3) those who hold a valid Certificate of Authorization issued by the American Society of Mechanical Engineers or The National Board of Boiler and Pressure Vessel Inspectors that are:

(A) appropriate for the scope of work to be performed, and

(B) performed solely on boilers as defined in Chapter 755 of the Health and Safety Code; and

(4) persons who install, repair, or remove a vent hood of the type commonly used in residential and commercial kitchens, as long as the person does not install, repair or remove any other part of the exhaust system.

(5) persons who engage in air conditioning and refrigeration contracting regarding:

(A) a portable or self-contained ductless air conditioning product that has a cooling capacity of three tons or less;

(B) a portable or self-contained heating product that does not require the forced movement or air outside the heating unit;

(C) environmental air conditioning equipment that is intended for temporary use and is not fixed in place; or

(D) a residential refrigerator, freezer, or ice machine.

(b) Unlicensed general contractors may bid or contract for a job that includes air conditioning or refrigeration if the job does not consist solely of work requiring a license under the Act.

§75.70. Responsibilities of the Contractor/Licensee.

(a) The licensee must:

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

(2) if affiliated with an air conditioning and refrigeration contracting company, be an employee or owner of the air conditioning and refrigeration contracting company and must work full time at the company or permanent office of the company;

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

(4) furnish the department with 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 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 conditioning 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 those licensed companies that may pull permits under his license;

(7) provide proper installation and service, and assure the mechanical integrity of work and installations performed or supervised by the licensee;

(8) not misrepresent the need for services, services to be provided, or services that have been provided;

(9) not make a fraudulent promise or false statement to influence, persuade, or induce an individual or a company to contract for services;

(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 to perform maintenance work.

(12) Upon request from the applicant or the department, verify information within the licensee’s knowledge regarding the practical experience of an applicant claiming to have worked under the supervision of the licensee, on a form designated by the department. The licensee must provide information requested by the department within fifteen (15) calendar days of the request. The verified information must include, but is not limited to:

(A) Dates during which the licensee supervised the applicant;

(B) A brief description of the work performed by the applicant; and

(C) The name of the business under which the applicant’s work was performed.

(b) A licensee may subcontract portions of work requiring a license under the Act to unlicensed persons, firms, or corporations as long as:

(1) the licensee actively provides work or service which requires a license, either in person or with the licensee's employees;

(2) the work or service provided in person or with the licensee's employees consists of more than accepting a contract or request for service, scheduling the work, and providing supervision of the work; and

(3) the licensee is ultimately responsible to the customer for all work performed by the subcontractor.

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

(d) A licensee who subcontracts to perform work requiring a license under the Act for an air conditioning and refrigeration contracting company is responsible to the company and the department for the mechanical integrity of all work performed by the subcontractor.

(e) The licensee is responsible for all work performed under 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 compliance with the Act.

(f) A licensee may not allow another individual to use his license for any purpose.

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

(h) A licensee must:

(1) notify the department, in writing, within thirty (30) calendar days of any change in permanent mailing address, company location, company telephone number or change in assignment of license; and

(2) provide a revised insurance certificate to the department within thirty (30) calendar days of a change in the name of the company to which the license is assigned.

(i) Failure to maintain insurance or failure to provide a certificate of insurance when requested is grounds for imposition of administrative penalties and/or sanctions.

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

§75.110. Applicable Codes.

(a) The commission adopts the following as the applicable codes as referenced in the Act and this chapter:

(1) 2012 edition of the Uniform Mechanical Code; and

(2) 2012 editions of the International Mechanical Code, the International Residential Code, and other applicable codes.

(b) The 2012 codes are effective January 1, 2015.

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 April 13, 2017.

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