Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Elevators, Escalators, and Related Equipment
16 TAC Chapter 74, amendments to §74.100

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code, Chapter 74 §74.100, regarding the Elevators, Escalators, and Related Equipment program, without changes to the proposed text as published in the July 20, 2018, issue of the Texas Register (43 TexReg 4815). The rules will not be republished.

The adopted amendments update the standards that elevators, escalators, and related equipment must comply with to the American Society of Mechanical Engineers (ASME) A17.1-2016. The adopted amendments also update the deletions to the ASME A17.1 and renumber the section accordingly. The update to the ASME A17.1-2016 is necessary to keep pace with changes in the 2015 version of the International Building Code (IBC). The adopted amendments are necessary to comply with ASME.

The adopted amendments to §74.100 update the American Society of Mechanical Engineers (ASME) A17.1 code to the 2016 version, update the amendments to the ASME A17.1, add an effective date of November 1, 2018, and renumber the section accordingly.

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the July 20, 2018, issue of the Texas Register (43 TexReg 4815). The deadline for public comment was August 20, 2018. The Department received four comments during the 30-day public comment period. The public comments received are summarized below.

Comment--One commenter is against the deletion of Section 7.4.2.2 and deleting references to Type B material lifts. The commenter requested identification of each safeguard to rider safety missing from Type B Material lifts.

Department Response--The equipment covered in Section 7.4.2.2 does not provide all the protection features as required for elevators. Most of this type equipment is found in exempt locations and the existing equipment and installations of new equipment in these exempt locations are unaffected by this deletion. A previous ruling by the Texas Attorney General finds that employees, whether authorized personnel or not, of a non-exempt location are considered the public and therefore §754.014(a) authorizes the department to regulate such equipment.

Comment--Another comment suggests deletion of ASME A17.1 Section 2.12.7.2.1(c) will not ensure the safety of inspectors because of the placement of the hoistway access key.

Department Response--The Department respectfully disagrees with the assertions and assumptions in this comment. It is in the best interest of the public to not have the hoistway access key mounted on a sight guard that can be subjected to abuse and vandalism and inadvertent damage that creates a potential hazard to the public.

Comment--One commenter suggests that the deletion of Section 7.4.2.2 and all references to type B material lifts will not protect the public.

Department Response--The Department respectfully disagrees with the assertions and assumptions in this comment. Riders are specifically prohibited from riding Vertical Reciprocating Conveyors by both Occupational Safety and Health Administration (OSHA) and 820.1. OSHA regulates the use of vertical reciprocating conveyors used in general industry under various standards relative to specific types of applications. These regulations can be found at 29 CFR 1910.107(b)(7), .107(h)(7), .108(c) (6), .263(d)(7), .263(i)(7), and .265(c)(18). All other applications of conveyors are regulated under 29 CFR 1910.212, general requirements for all machines. In this regard, OSHA relies on the recommendations of the ANSI B20.1 for the acceptable safeguarding of employees exposed to conveyors. ANSI B20.1, Sections 5.12.4 and 6.21.1.3 prohibit the riding of vertical and vertical reciprocating conveyors. As a result of these recommendations, OSHA does not permit the riding of such conveyors by personnel. Therefore, since these conveyors are not intended for the transport of personnel, they are not properly within the scope or application of the elevator standards set forth by ANSI A17.1.

Comment--A comment suggest deletion of Section 8.6.6.19.7 related to emergency power will create unsafe conditions.

Department Response--The Department respectfully disagrees with the assertions and assumptions in this comment. Emergency power is not a code requirement in A17.1. All such requirements for emergency power are based on the locally adopted building code and the locality has the sole jurisdiction over those building code requirements and their enforcement. In the localities the local fire marshals perform and witness the inspection and testing of the emergency power systems, including the elevators when emergency power is provided or required. Requiring an owner to replicate the testing of emergency power required by the building in the presence of a registered elevator inspector placed an unnecessary, burdensome and costly expense upon the building owner. Thus, the requirement for the tests and the resulting witnessing by a registered elevator inspector was eliminated from A17.1.

Comment--An additional comment suggests that deletion of Section 8.6.5.14.3(f), 8.10.2.2.1(q) emergency power tests, 8.10.2.3.1(l) altered electric elevators, and 8.10.3.3.2(l) for altered hydraulic elevators will cause certain unsafe conditions.

Department Response--The Department respectfully disagrees with the assertions and assumptions in this comment. Emergency power is not a code requirement in A17.1.  All such requirements for emergency power are based on the locally adopted building codes. As stated above, requiring an owner to replicate the testing of emergency power required by the building in the presence of a registered elevator inspector placed is unnecessary, burdensome and costly expense upon the building owner. Thus, the requirement for the tests and the resulting witnessing by a registered elevator inspector was eliminated from A17.1.

Comment--A commenter suggest that deletion of A17.3 creates confusion when inspecting existing elevators.

Department Response--The Department respectfully disagrees with the assertions and assumptions in this comment. Since §754.014(1) does not authorize the department to adopted newer versions of A17.3 it is essential that the reference in Section 9.1 be deleted to eliminate any confusion as to which edition of A17.3 is adopted in Texas. Registered elevator inspectors are required to be familiar with and inspect equipment in accordance with the current laws and rules in Texas. The alteration of an elevator is not covered by A17.3 but is covered by A17.1 Section 8.7 in Texas since all equipment installed before September 1, 1993 is required to be in full compliance with A17.3-2002.

Comment--Another comment claims that deletion of Appendix E is unnecessary since it is clearly marked an Nonmandatory.

Department Response--Appendix E has been deleted because it is only effective in Canada. Also, since the language is nearly the same as that found in A17.1. Moreover, Appendix E has been deleted to avoid any inadvertent conflicts with the Texas Accessibility Standards.

Comment--The agency should consider adopting §74.100(c)(5) ASME A17.6-2010 because the standard covers three main types of suspensions.

Department Response--The Department is not authorized by §754.0140 to adopt an A17.6.

The Elevator Advisory Board (Board) met on August 22, 2018, to discuss the proposed rules and the public comments received. The Board recommended adopting the rules without changes.

At its meeting on September 25, 2018, the Commission adopted the rules without changes as recommended by the Board.

The amendments are adopted under Texas Occupations Code, Chapter 51 and Health and Safety Code Chapter 754, 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, Chapter 51 and Health and Safety Code Chapter 754. No other statutes, articles, or codes are affected by the adoption.

§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:

(1) ASME Code A17.1-2016/CSA B44-16 as amended in subsection (b);

(2) ASME Code A17.3-2002;

(3) ASME Code A18.1-2005; and

(4) ASCE Code 21.

(b) The following amendments shall be made to ASME Code A17.1-2016/CSA B44-16:

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

(2) Delete 2.12.7.2.1(c) hoistway access switch on sight guard.

(3) Delete 7.4.2.2 and all references to type B material lifts within the adopted standard, preface, and appendices.

(4) Delete requirement 8.6.4.19.7 standby or emergency power operation.

(5) Delete requirement 8.6.5.14.3(f) standby or emergency power operation.

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

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

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

(9) Delete the reference to ASME Code A17.3 contained within 9.1.

(10) Delete Appendix E in its entirety.

(c) The effective dates of:

(1) ASME Code A17.1-2016/CSA B44-16 and the amendments in subsection (b) shall be effective on November 1, 2018.

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

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

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 October 5, 2018.

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