28 TAC §5.4606
The Commissioner of Insurance proposes new §5.4606,
concerning the temporary appointment of qualified inspectors to conduct windstorm
inspections in Jefferson and Chambers counties pursuant to Insurance Code
Article 21.49 §6A. Temporary appointees will be authorized to perform
inspections of residential structures that may be considered insurable property
for windstorm and hail insurance, but will be limited to re-roof inspections
of residential structures during the construction process. As a result of
the destruction caused by Hurricane Rita along the Texas coast, certain counties,
and in particular Jefferson and Chambers counties, are facing massive rebuilding
and repair of residential and commercial structures. In the Beaumont area
alone, approximately 90% of the residential structures are damaged, and the
residents are suffering delays in repair of these structures because of the
overwhelming demand for windstorm inspections and the lack of qualified inspectors
to meet this demand. Inspectors employed by the department are receiving over
100 inspection applications per day. The department has temporarily reassigned
its inspectors from other areas on the coast, including Corpus Christi, Angleton,
and Bay City, to assist in meeting this demand, and the department's current
appointees who perform inspections are responding primarily to the requests
for inspections of commercial buildings. As a result, there are long delays
for inspections of the vast majority of the residential structures in Jefferson
and Chambers counties; these delays continue to adversely impact the ability
of residents to rebuild and repair their damaged homes. The department has
determined that this lack of availability of willing and qualified inspectors
necessitates this proposal to enable the Commissioner to appoint persons with
the experience and training that the department has determined is sufficient
for qualified inspectors on a temporary basis to respond to residents in the
two counties most affected and most in need. The proposed new rule specifies
the experience and training of persons eligible to apply for a temporary appointment
and outlines the requirements, financial interest prohibitions, and application
process for a temporary appointment. The issuance of a temporary appointment
to a qualified inspector will only authorize re-roof inspections of residential
property in Jefferson and/or Chambers counties; such re-roof inspections must
be conducted during the construction process and may not be conducted after
completion of the re-roofing process. The proposed expiration date for a temporary
appointment is December 31, 2006, unless extended by the department based
on demonstrated need in Jefferson or Chambers counties. The temporary appointees
will be subject to the provisions of the department's current rule §5.4604
relating to the appointment of engineers as qualified inspectors, including
oversight by the department. The temporary appointees will also be subject
to the emergency cease and desist provisions of the Insurance Code as provided
in proposed subsection (m). This is necessary to ensure that improper inspections
are halted as quickly as possible to prevent approval of faulty or inadequate
re-roofing of residential structures, which could result in certification
of structures that do not meet windstorm building code requirements and also
additional harm to the damaged areas in Jefferson and Chambers counties.
The department will consider the adoption of proposed new §5.4606
in a public hearing under Docket Number 2634, scheduled for 10:30 o'clock,
a.m. on February 15, 2006, in Room 102 of the William P. Hobby, Jr. State
Office Building, 333 Guadalupe Street, Austin, Texas.
Alexis Dick, Deputy Commissioner for the Inspections Division, has determined
that, for each year of the first five years the proposed new section is in
effect, there will be no fiscal impact on state or local government as a result
of enforcing or administering the section. Ms. Dick has also determined that
there will be no measurable effect on local employment or the local economy.
Ms. Dick has further determined that for each year of the first five years
the proposed new section is in effect, the public benefit anticipated as a
result of administering and enforcing the section will be to ensure that qualified
inspectors are available to respond to residents in hurricane damaged areas
most affected and most in need of re-roofing during the period of rebuilding,
namely Jefferson and Chambers counties. The department expects that these
temporary appointments will result in the relatively prompt availability of
persons who are willing and qualified to perform windstorm re-roof inspections
on structures to be considered insurable property for windstorm and hail insurance.
Texans benefit from a strong and prompt recovery from devastating natural
events like Hurricane Rita. The department anticipates that the supply and
demand for windstorm inspections in damaged areas will determine the market
price of needed inspections; any consumer complaints or other information,
however, concerning abusive pricing practices will be carefully reviewed and
appropriate action will be taken if necessary. There are no persons who are
required to comply with the proposed new section. The anticipated costs to
persons who choose to apply for a temporary appointment will be the time to
complete the application and obtain the required documents to submit with
the application. It is difficult to estimate an exact cost for this time as
it is uncertain as to which persons who are eligible will actually participate
in this voluntary temporary appointment process. However, eligible persons
who are interested in applying for a temporary inspector appointment will
be able to estimate their individual costs. There are no application or other
fees required under the proposed new section. The department expects no differential
impact between small, large, and micro-businesses that decide to participate
in this temporary appointment process. The cost per hour of labor for the
application process should not vary between small, large, and micro-businesses
of the same type. Further, it is neither legal nor feasible to exempt small
or micro-businesses or to waive compliance considering the purpose of the
statute, which requires windstorm inspections to be performed by a qualified
inspector who must be approved and appointed or employed by the department
to perform building inspections.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on February 20, 2006, to Gene C. Jarmon, General Counsel
and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box
149104, Austin, Texas 78714-9104. An additional copy of the comments must
be submitted simultaneously to Alexis Dick, Deputy Commissioner, Inspections
Division, Mail Code 103-1A, Texas Department of Insurance, P.O. Box 149104,
Austin, Texas 78714-9104.
The new section is proposed pursuant to the Insurance Code Article
21.49 §6A and §36.001. Article 21.49 §6A provides that a windstorm
inspection may only be performed by a qualified inspector who must be approved
and appointed or employed by the department to perform building inspections.
Section 6A also provides that a qualified inspector includes a person determined
by the department to be qualified to perform building inspections because
of training or experience and an inspector who is certified by the International
Code Council, the Building Officials and Code Administrators International,
Inc., the International Conference of Building Officials, or the Southern
Building Code Congress International, Inc. who has certifications as a buildings
inspector and coastal construction inspector and who also complies with other
requirements specified by rule by the commissioner. Section 36.001 provides
that the Commissioner of Insurance may adopt any rules necessary and appropriate
to implement the powers and duties of the Texas Department of Insurance under
the Insurance Code and other laws of this state.
The following statute is affected by this proposal: Insurance Code Article
21.49
§5.4606.Requirements for Temporary Appointment of Qualified Inspectors.
(a)
The purpose of this section is to specify qualifications,
requirements, and procedures pursuant to the Insurance Code Article 21.49 §6A(d)
for the appointment for a temporary period of persons to perform windstorm
re-roof inspections of residential structures in Jefferson and/or Chambers
counties of Texas. Persons appointed under this section must meet the qualifications
for appointment under this section and shall perform inspections in accordance
with the provisions of this section, §§5.4001 - 5.4010 of this title
relating to the Texas Windstorm Insurance Association plan of operation, §§5.4601
- 5.4605 of this title relating to inspections for windstorm and hail insurance,
and the Insurance Code Article 21.49 §6A. The following persons are eligible
to apply for a Temporary Appointment as a Qualified Inspector:
(1)
A person who is certified as a coastal construction inspector
by the International Code Council and who has at least two years of construction,
design or inspection experience on buildings or structures located in high
wind areas; this may include a person employed full-time by a municipality
of this state who meets the qualifications as stated in this paragraph; or
(2)
A Texas registered architect with construction, design
or inspection experience on buildings or structures located in high wind areas;
or
(3)
Any person with experience, education, or training in programs
at an accredited university which shall include at a minimum successful completion
of at least two years of technical or university training in the field of
civil or architectural engineering, the field of architecture, or the field
of construction technology or construction science and at least two years
of construction, design or inspection experience on buildings or structures
located in high wind areas.
(b)
For the purposes of this section, the following words and
terms shall have the following meanings:
(1)
Commissioner--Commissioner of Insurance of the State of
Texas.
(2)
Department--Texas Department of Insurance.
(3)
Person--An individual and includes a resident or non-resident
of this state.
(4)
Re-roof--The process of recovering or replacing an existing
roof covering and includes the following terms:
(A)
Roof covering--The covering applied to a roof deck for
weather resistance, fire classification or appearance.
(B)
Roof deck--The flat or sloped surface not including its
supporting members or vertical supports.
(C)
Roof recover--The process of installing an additional roof
covering over a prepared roof covering without removing the existing roof
covering.
(D)
Roof replacement--The process of removing the existing
roof covering, repairing any damaged substrate and installing a new roof covering.
(5)
Temporary appointee--A person who has been issued a Temporary
Appointment as a Qualified Inspector under this section.
(c)
A person applying for a temporary appointment under this
section must complete and file an application for Temporary Appointment as
a Qualified Inspector on a form prepared, maintained, and obtainable from
the department.
(d)
Persons applying under the requirements of paragraph (1)
of subsection (a) of this section shall also affirm to the Commissioner through
a sworn statement the current, active, and good-standing status of their certification
and/or shall also provide a Certification of Employment affidavit from the
municipality as applicable.
(e)
Persons applying under the requirements of paragraph (2)
of subsection (a) of this section shall also affirm to the Commissioner through
a sworn statement the current, active, and good-standing status of the architect's
registration through the Texas Board of Architectural Examiners.
(f)
Persons applying under the requirements of paragraph (3)
of subsection (a) of this section shall also provide a certified copy of a
completed degree, if any, certificate, or transcript.
(g)
A temporary appointee shall not have a financial interest
either directly or indirectly in or be employed by a business that is financially
interested either directly or indirectly in the furnishing of labor, material,
or appliances for the construction, alteration, or maintenance of any building,
nor have current employment or accept compensation or accept other employment
or compensation during the period of appointment which could reasonably be
expected to impair the temporary appointee's independence of judgment in the
performance of inspections pursuant to this section.
(h)
A temporary appointee shall comply with and utilize all
windstorm inspection forms required by §5.4604 of this title relating
to appointment of engineers as qualified inspectors, with such forms modified
to substitute "qualified inspector" for "engineer" as applicable.
(i)
Except as otherwise provided in this section, a temporary
appointee shall be subject to all provisions of §5.4604 of this title
including oversight by the department as specified in subsection (h) of §5.4604.
If there is a conflict between the provisions of this section and the provisions
of §5.4604 of this title, this section shall control.
(j)
A temporary appointee is prohibited from delegating the
duties under this section to any other person. The delegation/assistance provision
of subsection (g)(5) of §5.4604 of this title shall not apply to a temporary
appointee,
(k)
A temporary appointee is only authorized to perform in
Jefferson and Chambers counties re-roof inspections of residential structures
during the construction process on risks that could be considered insurable
property for windstorm and hail insurance. No other types of inspections by
temporary appointees will be considered valid for purposes of the Insurance
Code Article 21.49.
(l)
A Temporary Appointment as a Qualified Inspector issued
under this section shall be valid until December 31, 2006, unless extended
by the department based on demonstrated need in Jefferson or Chambers counties.
(m)
In addition to any other remedy available under Insurance
Code Article 21.49 §6A, and Chapters 82 and 84, and §5.4604 of this
title relating to appointment of engineers as qualified inspectors, the department
may issue an emergency cease and desist order pursuant to Insurance Code Chapter
83 to any person who violates any provision of this subchapter or any other
rule or statute relating to inspections of structures to be considered insurable
property for windstorm and hail insurance.
(n)
If a court of competent jurisdiction holds that any provision
of this section is inconsistent with any statutes of this state, is unconstitutional,
or is invalid for any reason, the remaining provisions of this section shall
remain in effect.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 9, 2006.
TRD-200600119
Brenda Caldwell
Alternate Certifying Official
Texas Department of Insurance
Earliest possible date of adoption: February 19, 2006
For further information, please call: (512) 463-6327