Part 4.
TEXAS DEPARTMENT OF LICENSING AND REGULATION
Chapter 68.
ELIMINATION OF ARCHITECTURAL BARRIERS
The Texas Commission of Licensing and Regulation ("Commission") adopts
amendments to existing rules at 16 Texas Administrative Code ("TAC") Chapter
68, §§68.1, 68.10, 68.20, 68.31, 68.50, 68.52, 68.53, 68.65, 68.70,
68.75, 68.76, 68.80, 68.90, 68.100, 68.101, and 68.103; new rule §§68.54,
68.55, 68.60, and 68.73, and the repeal of §68.54 and §68.74 regarding
the elimination of architectural barriers program as published in the October
20, 2006, issue of the
Texas Register
(31
TexReg 8603), without changes, and will not be republished. The Commission
also adopts amendments to existing rule §§68.30, 68.50, 68.51, and
68.102; and new rules §68.74, and §68.104 published in the October
20, 2006, issue of the
Texas Register
(31
TexReg 8603), with changes from the rules as proposed, and are republished.
The amendments, new rules, and repeal are a result of the Department's
rule review, which is required every four years, of the architectural barriers
administrative rules. The amendments, new rules, and repeal are necessary
to update statutory references and bring rule requirements more in line with
state and federal law. A new continuing education rule is added to require
registered accessibility specialists to complete eight hours of continuing
education. The adoption of these rules also reorganizes certain provisions
for greater clarity and readability and deletes unnecessary provisions.
The Architectural Barriers Advisory Committee ("Committee") met on November
28, 2006, and recommended adoption of these rules with certain changes based
on public comments. The proposed amendments, new rules, and repeals were distributed
to persons internal and external to the agency. The public comment period
closed on November 20, 2006. Thirteen written comments were received in response
to the proposal, two of which were not timely received. The following is a
summary of the comments and the Department's responses, along with a description
of changes made based on various comments.
Written Public Comments
The Texas Department of Transportation (TxDOT) recommends revising the
definition of "public right-of-way" in §68.10 to add "other transportation
facilities," specifically to include hike and bike trails. The Department
disagrees that this change should be made at this time. The Department believes
that this is a substantive change that would significantly broaden the definition
and so would require further study and additional public comment. TxDOT also
recommends adding definitions for various types of curb ramps. The Department
does not believe that the recommended curb ramp definitions are needed in
the rules. In the Department's experience there has been no confusion over
the meaning of these terms expressed by the regulated community or the public.
If clarification of the meanings of these terms becomes necessary, the Department
could propose rule changes in the future.
TxDOT expresses concern about language in §68.74(d) that prohibits
a registered accessibility specialist from receiving credit for attending
the same course more than once. The Department agrees that clarification of
this rule is needed, and the adopted rule includes language to clarify that
a course may not be repeated for credit during the one-year period for which
the course is approved. TxDOT also recommends keeping the maximum setback
for detectable warnings at diagonal curb ramps at ten inches, rather than
the proposed eight inches, in §68.102(b)(2)(C). The Department agrees
with this comment, and the rule as adopted retains the ten-inch setback. The
current set back is more feasible with the type of construction that TxDOT
uses.
The Texas Registered Accessibility Specialist Association (TRASA) proposes
adding a definition of "construction cost" to the definitions section, §68.10.
The Department disagrees with this comment and believes that the language
defining the term "construction cost" is more convenient in §68.80, where
the term is used. TRASA also suggests adding to the description of exempt
employee work areas, areas that are depressed seven inches. While the Department
acknowledges that the suggested language might be a sensible addition to the
exemption, the Department believes that the wording of the exemption should
remain consistent with federal standards, which do not include the suggested
language. TRASA recommends adding "residential amenities" to the description
of exempt residential facilities. The Department does not believe that this
is an appropriate addition to the rules at this time because the public and
interested parties would need to be advised of this change and have the opportunity
to comment. The Department will consider this language for future rulemaking.
TRASA suggests deleting language concerning approval of construction documents,
so that the only result of a plan review would be reporting the plan review
findings. The Department agrees with this comment because an approval or disapproval
of construction documents does not have the effect of preventing construction
of the project from proceeding. The only practical effect is to advise the
owner or design professional of items that will need to be changed to bring
the project, when it is constructed, into compliance with the Texas Accessibility
Standards. The language of adopted §68.51(a) and (c)(1) has been changed
accordingly.
TRASA suggests applying the new eligibility requirements for RAS's in §68.70(a)
to renewals of existing registrations, not to new applications only. The Department
does not agree that the new eligibility requirements should be applied retroactively
to RAS's who are currently registered. The intent of the rule change is not
to prevent currently-registered RAS's, who are deemed to be qualified, from
continuing to offer services.
TRASA suggests specifying in §68.74(d) that a RAS may not attend a
continuing education course more than once
during
the RAS's licensing year.
The Department agrees that clarification
of the rule is needed and has modified the rule as discussed above; however,
the Department believes that the relevant time period to reference in the
rule is the one-year period for which the course is approved, not the RAS's
licensing year. This rule will help to ensure that the continuing education
hours taken by a RAS are meaningful and contain useful information. TRASA
suggests reorganizing continuing education topics in §68.74 to allow
certain topics to be offered by providers who are not registered with the
Department. The Department agrees with the substance of this comment. Based
on this comment and oral comments received at the Architectural Barriers Advisory
Committee Meeting on November 28, 2006, the Department believes that RAS's
should be allowed to satisfy part of the continuing education requirement
using courses that have not gone through the Department's approval process.
This would allow RAS's to use courses taken to maintain some other professional
license or certification, such as an architect's license. The rule as adopted
allows a RAS to receive up to four hours of continuing education credit for
courses that are not approved by the Department and that are offered by providers
not registered with the Department. The courses must be dedicated to instruction
in one of the specified topics. This credit cannot be used to satisfy the
required four hours specific to Texas law and rules and Department standards
and procedures. The RAS will certify upon renewing his or her registration
the number of hours completed and must keep a copy of the certificate of course
completion for three years after the date of completion. TRASA also suggests
adding Fair Housing Act and other state accessibility standards as acceptable
continuing education topics. The Department agrees that the federal Fair Housing
Act, which includes accessibility requirements, is a relevant topic for RAS
continuing education. The adopted version of §68.74(f) includes this
topic. However, the Department does not consider other states' standards to
be relevant because RAS's must apply or be familiar with Texas and federal
standards.
TRASA suggests adding to §68.80(b) that a RAS is not obligated to
charge fees in accordance with the Department's fee schedule. The Department
does not believe that this change is necessary because §68.80(a) indicates
that the rules applies to fees collected by the Department. Finally, TRASA
recommends adding "or other emergency responders" after fire-fighting personnel
in §68.104. The Department agrees that this change is necessary because
common use spaces and elements at fire stations may be used by other emergency
responders, such as emergency medical technicians. The rules as adopted have
been changed accordingly.
One commenter indicates that she does not want continuing education provided
only by large companies who do continuing education as a business. The Department
does not believe that any rule changes are warranted based on this comment.
However, in implementing the rule, the Department will seek to have a variety
of continuing education providers offering courses so that RAS's will have
sufficient options for completing continuing education. The commenter concurs
with TRASA's comments regarding continuing education. See the Department's
responses above concerning those comments.
Another commenter suggests requiring an approved plan review before permits
are issued. The Department does not have control over the issuance of building
permits, and implementing the commenter's suggestion likely would require
statutory changes. No changes to the rules are warranted based on this comment.
The commenter also wants to require state employees to have files in hand
before performing an inspection. The Department agrees that the person performing
an inspection should have access to relevant information about the project.
However, if any changes are needed based on this comment, they would be more
appropriately addressed in Department procedures, rather than in these proposed
rules. The commenter would also require late submittals by engineers and architects
to be reported to the appropriate licensing agency. Such reporting is already
required by Texas Government Code, §469.104, so no rule changes are needed.
The commenter would require complaint files to be reinspected. The Department
has a procedure in place to follow up on enforcement complaints to determine
whether the project has been brought into compliance. No rule changes are
warranted based on this comment. The commenter suggests providing continuing
education for RAS's on ethics standards. The Department agrees that ethics
is a relevant topic for RAS continuing education, and §68.74 as adopted
has been changed to include this topic. Finally, the commenter states that
the Department should protect RAS's and not investigate and require audits
based on erroneous complaints. The Department responds that all complaints
filed which allege a violation within the Department's jurisdiction must be
investigated. If the Department determines that a compliant is erroneous,
the Department would take no action against the RAS who is the subject of
the complaint. No rule changes are warranted based on this comment.
A commenter questions what the penalty is for an owner not requesting an
inspection within 30 days after completion of construction. The Department
responds that penalties for specific rule violations are addressed in the
penalty matrix, which is part of the Department's Enforcement Plan, rather
than in the rules. The commenter also expresses confusion over a reference
in the proposed rules to a Proof of Submission form. This form will be developed
and made available once the rules are effective.
A commenter points out that the exemption for places used primarily for
religious rituals should be consistent in the use of the term "common
A commenter recommends requiring the owner to request an inspection at
least 30 days prior to the first anniversary of completion of the project,
rather than the current requirement to request the inspection within 30 days
after the completion of the project. The Department believes that the current
requirement in the rules is appropriate and facilitates the timely inspection
of projects. No rule changes are warranted based on this comment. The commenter
agrees with the use of the Request for Inspection form. The commenter also
suggests having a broader range of continuing education topics. The Department
generally agrees with the commenter's suggestion and has modified §68.74
to add topics as described above. The commenter suggests changing §68.74(d)
to require a course not to be repeated more than once every three years. The
Department responds that continuing education courses are approved for a one-year
period, so the rule should reference that period.
One commenter, a shopping mall owner, expresses concern over the owner's
lack of control over requesting inspections when this is handled instead by
tenants. The Department notes that the owner's responsibility for architectural
barriers compliance is fixed by statute. The Department believes that this
is an issue to be resolved between the owner of the building or facility and
the tenant and that no rule changes are necessary.
A commenter suggests that the definition of "owner" specifically should
include property management companies. The Department believes that the definition
of "owner" in §68.10 is sufficiently broad to encompass all types of
entities. The definition of "designated agent" has not been proposed for revision
in this rulemaking, but the Department will examine whether that definition
should be broadened in future rulemaking. The commenter also suggests that
the rules should clarify who is responsible for compliance as between the
owner of the building and the owner of the property (presumably the land).
The Department notes that both the statute and the rules place responsibility
for compliance on the owner
of the building or facility.
No rule changes are warranted based on this comment. The commenter
suggests adding to electronic project registration a field for the owner's
contact E-mail address. This comment relates to Department procedure and electronic
forms and does not require rule changes. Finally, the commenter believes that
the rules should specify that all submittals of construction documents, not
only resubmittals, received after completion of construction may not be reviewed
but will become a matter of record. The Department disagrees because, by statute,
the Department is responsible for reviewing submitted construction documents.
A commenter suggests requiring RAS's who currently hold only an inspection
endorsement to meet the new higher RAS registration requirements within a
specified period of time. As discussed above, the Department does not believe
that retroactively applying the new requirements to current registrants is
appropriate. Retroactive application of the requirements would be unfair to
RAS's who have met the existing requirements and, therefore, have been deemed
qualified to provide services. The commenter also objects to the current $350
RAS renewal fee because the renewal term is only one year. The Department
notes that the fee and the renewal term have not been changed in these proposed
rules. The only proposed RAS fee change is to eliminate single endorsement
fees since the single endorsements are being eliminated. Texas Occupations
Code, Chapter 51 requires that Department fees be set in amounts reasonable
and necessary to cover the costs of a program; and the Department periodically
reviews fees to determine whether they are set at appropriate levels. Finally,
the commenter suggests that the Department should provide the continuing education
courses for RAS's. The Department's intent is to foster the creation of a
private, competitive market for RAS continuing education, rather than the
Department offering the continuing education directly. This approach has worked
well in other Department programs, and the Department believes that this approach
will provide the best choices and value for RAS's.
A commenter suggests that §68.54 be amended to specify that an Architectural
Barriers Registration Form may be submitted to a RAS or contract provider,
as well as to the Department. The Department does not believe that this change
is necessary. The rule is needed to establish a Department process for reviewing
projects that are not required by law to be reviewed. An owner may wish to
contract with a RAS to conduct such a review, but this does not need to be
addressed in the rules because the review is not required. Similarly, the
commenter suggests that §68.55, regarding preliminary plan reviews, also
mention RAS's and contract providers. The Department does not believe that
such a change is necessary because the purpose of the rule is to establish
a Department process for preliminary plan reviews. The commenter objects to
the new language in §68.70 that, if all application requirements are
not met within one year, a new RAS application must be submitted. The commenter
indicates that his employee will not be able to meet the new RAS registration
requirements within that timeframe. The Department believes that the one-year
timeframe is reasonable. The rule simply places a maximum time limit on how
long an application may be held open before all requirements are met. The
rule is necessary for the Department to maintain an efficient licensing process.
Additionally, the commenter does not agree that all eight continuing education
hours for RAS's should be approved by the Department. See the Department's
response to this issue above. The commenter also suggests that a RAS be restricted
from soliciting a project owner if the project file is in the possession of
another RAS. This issue is beyond the scope of the current rulemaking, but
the Department may consider this issue in the context of future rulemaking.
Finally, the commenter suggests creating a one-year training program for RAS's.
The Department responds that this matter is beyond the scope of the current
rulemaking and so cannot be considered at this time.
The Department received written comments from the Texas Society of Architects.
The Department did not timely receive these comments and so did not have sufficient
time to consider all the issues raised. First, the commenter seems to object
to the number of continuing education hours required of RAS's. The Department
believes that the number of hours is appropriate, and the requirement was
developed with significant input from the industry and the Architectural Barriers
Advisory Committee. The commenter also objects to changes to §68.50 that,
in the commenter's view, shift the burden of payment of fees from the project
owner to the design professional. See the Department's response to this issue
in the below discussion of oral comments.
The Department received written comments from a representative of the City
of Corpus Christi. The Department did not timely receive these comments and
so did not have sufficient time to consider the issues raised. The commenter
objects to §68.30(11) which, in the commenter's view, would expand the
exemption to cover multi-family residential dwellings. The Department notes
that residential facilities in general are outside the scope of Texas Government
Code, Chapter 469. It is unclear to the Department how the exemption language
would negatively impact multi-family dwellings. The commenter also questions
the deletion from §68.102 of textures complying with TAS 4.7.4. The purpose
of this deletion is to require detectable warnings at curb ramps and is necessary
to accord with current federal standards. Lastly, the commenter agrees with
the elimination of single and dual endorsements for RAS's and agrees with
the added language for registering, reviewing and/or inspecting buildings
or facilities not subject to the Act.
Oral Comments from Architectural Barriers Advisory Committee Meeting
The Department received some oral comments, though not within the 30-day
public comment period, at the November 28, 2006, meeting of the Architectural
Barriers Advisory Committee. A commenter objected to the changes in §68.50(c)
that require project registration to be accomplished and fees paid when the
design professional submits the construction documents. The commenter's concern
is that the rule effectively places responsibility on the design professional
to pay the fees. The Texas Society of Architects also expressed concern over
the issue. The Department developed the rule changes with the input and approval
of the Advisory Committee, which includes architect members. In the Department's
view, the rule changes are beneficial to design professionals because they
enable the design professional to have more control over filings made in the
project. The Department notes also that the ultimate responsibility for payment
of fees lies with the project owner, not the design professional. If the design
professional does not wish to pay the fees up front, the Department believes
that it is possible for the design professional to make arrangements with
the owner to pay the fees. No changes have been made based on these comments.
Other comments suggested allowing RAS's to use continuing education obtained
for other professional licenses, such as architect licenses, to satisfy at
least part of the RAS continuing education requirements. See the discussion
above regarding changes to the rule as adopted.
A comment suggested postponing the beginning date for continuing education
compliance to allow more time for providers to become registered to offer
courses and for RAS's to complete courses. The Department agrees with this
comment, and §68.74(h) has been changed to specify that the continuing
education requirements apply to RAS's whose registrations expire on or after
March 1, 2008. This date should allow sufficient time for providers to become
registered, courses to be approved, and RAS's to complete the requirements.