PART 7. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
The Texas Residential Construction Commission (commission) proposes new 10 TAC §300.13, relating to negotiated rulemaking, which is a process by which representatives of a commission and interested parties seek to reach consensus on the terms of a proposed rule and on the process by which it is negotiated. When conducted in accordance with Government Code Chapter 2008, negotiated rulemaking is conducted in specific steps that allow the commission several opportunities to consider whether negotiated rulemaking is appropriate for the specific issue.
If the negotiated rulemaking process does not result in a rule upon which the committee reaches consensus, the commission may use the committee's documents, research, reports, and information to consider proposal of its own rule. Negotiated rulemaking does not delegate the commission's jurisdiction or rulemaking authority. The commission will not approve for publication a rule that is outside of its scope of jurisdictional authority or that violates law.
When a negotiated rulemaking committee reaches consensus, the commission must still evaluate the rulemaking. Then, the commission decides whether to publish the negotiated rulemaking for proposal, notice, and comment. In other words, the negotiated rulemaking precedes and is supplemental to all rulemaking requirements of the Administrative Procedure Act, Government Code Chapter 2001 Subchapter B.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five-year period that the proposed new rule is in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for state or local government as a result of enforcing or administering the new rule. The negotiated rulemaking process will be used only in circumstances where the criteria of Government Code §2008.052(d) indicate that negotiated rulemaking is likely to have favorable results.
Ms. Durso has also determined that for the first five years the proposed new rule is in effect the public will benefit from the proposed rule. When appropriate for developing rules, negotiated rulemaking improves relationships with regulatory stakeholders; increases public participation; and provides a forum in which rule provisions may be discussed and conflicts resolved before the rule is published in the Texas Register for public comment. Negotiated rulemaking brings together representatives of the agency and the various affected interests to develop a rule proposal in a cooperative effort. Therefore, the negotiated rulemaking process results in rules that meet statutory requirements and that are accepted by stakeholders, such as residential builders, homeowners, and the public.
Ms. Durso has also determined that there is no anticipated economic cost to small businesses or persons who are required to comply with the proposed new rule because the proposed new rule establishes the parameters for negotiated rulemaking, but does not require participation. A person interested in the subject matter of a negotiated rulemaking has the opportunity to participate in the rulemaking process and submit comments to the commission on the rules resulting from consensus of the negotiated rulemaking committee.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act, §2001.022.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect there will be no adverse economic effect on small businesses. Therefore, no regulatory flexibility analysis is necessary.
Written comments (12 copies) on the proposed new rule may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission by delivery to 311 East 14th Street, Austin, Texas 78701; or by fax to (512) 463-9507; or by mail to P.O. Box 13509, Austin, TX 78711-3509. Comments submitted by mail must be post marked by the deadline date. Comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "New rule 300.13 - Negotiated Rulemaking" in the subject line. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed rule in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration. Comments submitted electronically to a different email address or that do not have "New rule 300.13 - Negotiated Rulemaking" in the subject line may not be considered.
The new section is proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16 of the Property Code; Government Code §2008.051, which provides authority to state agencies to implement rules and engage in negotiated rulemaking; and the Administrative Procedure Act, Texas Government Code, Chapter 2001.
No other statutes, articles, or codes are affected by the proposed new rule.
§300.13.Negotiated Rulemaking.
(a) Policy. It is the commission's policy to employ negotiated rulemaking procedures in accordance with Government Code Chapter 2008, when appropriate.
(b) Definitions. When used in this section, these words and terms shall have the following meanings, unless the context of the rule clearly indicates otherwise.
(1) Convener--an impartial third-party, commission employee, or other individual without interest in the outcome of the negotiated rulemaking process, who identifies the interests affected by the negotiated rulemaking; collects information about the interests, issues, and parties; objectively surveys the regulatory landscape for the contemplated rulemaking; and reports these findings to the commission. If qualified, the convener may also act as the facilitator.
(2) Convening step--the first step in the negotiated rulemaking process whereby the commission objectively assesses whether negotiated rulemaking is the appropriate process for addressing an issue.
(3) Negotiated rulemaking committee (committee)--committee whose members are appointed by the commission to create an appropriate balance between representatives of affected interests and may include members or staff representing the commission.
(4) Negotiated rulemaking committee facilitator (facilitator)--assists the negotiated rulemaking committee in reaching a consensus.
(5) Negotiated rulemaking committee recommendation (recommendation)--a rulemaking proposal upon which each member of the negotiated rulemaking committee concurs.
(c) Petition. A petition to initiate a negotiated rulemaking proceeding must meet all requirements under §300.12(a) of this title and must include:
(1) a statement specifying that the request is for a negotiated rulemaking;
(2) an explanation of how the proposed rule would implement the commission's mission within the jurisdiction of the commission;
(3) all available data or information showing a need for the proposed rule; and
(4) such other information that the commission or the staff of the commission may request.
(d) Initiation of negotiated rulemaking. The commission may consider whether to initiate the convening step of a negotiated rulemaking upon:
(1) the filing of a petition to initiate a negotiated rulemaking that meets the requirements of subsection (c) of this section;
(2) the filing of a petition to initiate a negotiated rulemaking proposed by the commission; or
(3) a determination by the commission that a negotiated rulemaking would be beneficial to the commission's consideration of a proposed rule.
(e) Convening step. When the commission determines that a negotiated rulemaking is an appropriate process for developing proposed rules, it may initiate a negotiated rulemaking process by appointing a convener.
(f) Appointment of convener. The commission may appoint a convener to assist the commission's identification of persons who are likely to be affected by the proposed rule, including persons who oppose the issuance of a rule. The convener will discuss with affected persons or their representatives:
(1) whether they are willing to participate in negotiated rulemaking;
(2) whether the agency should engage in negotiated rulemaking to develop the proposed rule;
(3) which issues a negotiated rulemaking committee should address; and
(4) whether there are other persons the convener needs to identify who may be affected by the proposed negotiated rulemaking.
(g) Convener's report. The convener will report to the commission:
(1) the number of identifiable interests that would be significantly affected by the proposed rule;
(2) the probability that those interests would be adequately represented in a negotiated rulemaking;
(3) the probable willingness and authority of the representatives of affected interests to negotiate in good faith;
(4) the probability that a negotiated rulemaking committee would reach a unanimous or a suitable general consensus on the proposed rule;
(5) the probability that negotiated rulemaking will not unreasonably delay notice and eventual adoption of the proposed rule;
(6) the adequacy of agency and citizen resources to participate in negotiated rulemaking;
(7) the probability that the negotiated rulemaking committee will provide a balanced representation between public and regulated interests;
(8) the willingness of the agency to accept the consensus of a negotiated rulemaking committee as the basis for the proposed rule; and
(9) whether the convener recommends negotiated rulemaking as a feasible method to develop the proposed rule.
(h) Commission decision to proceed. After considering the convener's report and recommendation, the commission will determine during an open meeting whether to proceed with negotiated rulemaking.
(i) Notice of the negotiated rulemaking. If the commission's decision is to proceed with negotiated rulemaking, the commission will publish notice of its intention in the Texas Register. The commission may also publish notice of its intention in other appropriate media. The notice will include:
(1) a statement that the agency intends to engage in a negotiated rulemaking;
(2) a description of the subject and scope of the rule to be developed;
(3) a description of the known issues to be considered in developing the rule;
(4) a list of the interests that are likely to be affected by the proposed rule;
(5) a list of the individuals the agency proposes to appoint to the negotiated rulemaking committee to represent the agency and affected interests;
(6) a request for comments on the proposal to engage in negotiated rulemaking and on the proposed membership of the negotiated rulemaking committee; and
(7) a description of the procedure, including any deadline, through which a person who will be significantly affected by the proposed rule may, before the agency establishes the negotiated rulemaking committee, apply to the agency for membership on the committee or nominate another to represent the person's interests on the committee.
(j) Appointment of committee. After the close of the notice and comment period described in subsection (i) of this section, the commission will use the public comment and the convener's report to deliberate and appoint members to the negotiated rulemaking committee who will:
(1) create the appropriate balance between representatives of affected interests; and
(2) represent the commission.
(k) Appointment of facilitator. At the time the commission appoints the members to the negotiated rulemaking committee, the commission will appoint a committee facilitator:
(1) who possess the qualifications required for an impartial third-party under Civil Practice and Remedies Code §154.052(a), including completion of a minimum of 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the commission;
(2) who has qualified immunity under Civil Practice and Remedies Code §154.055, if applicable;
(3) who is not the person designated to represent the agency on the negotiated rulemaking committee for substantive issues related to the rulemaking;
(4) who does not have a financial or other interest in the outcome of the rulemaking process that would interfere with the person's impartial and unbiased service as the facilitator;
(5) who serves at the will of the committee; and
(6) whose appointment by the commission is subject to the approval of the negotiated rulemaking committee.
(l) Committee facilitator. The committee facilitator:
(1) is subject to the standards and duties prescribed by Civil Practice and Remedies Code §154.053(a) and (b);
(2) will encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement;
(3) may not disclose to either party information given in confidence by the other, unless expressly authorized by the disclosing party; and
(4) will at all times maintain confidentiality with respect to communications relating to the subject matter of dispute arising through the negotiated rulemaking process.
(m) Committee activities. The negotiated rulemaking committee will negotiate for a consensus proposal on the rulemaking. Consensus requires that each committee member must concur for there to be a committee recommendation. When the committee concludes its negotiations, it will submit a report to the commission.
(1) If the negotiated rulemaking committee does not reach consensus, it may forward to the commission any information it has compiled to the agency.
(2) If the negotiated rulemaking committee does reach consensus, it will forward the rule language to the commission.
(n) Commission decision on negotiated rulemaking. The commission will consider the negotiated rulemaking committee's consensus recommendation. The commission may approve the committee's negotiated rule language, amend the committee's negotiated rule language, or decline to adopt a rule created through the negotiated rulemaking process. The commission may propose its own rule. The commission may not adopt a rule or provision for which it has no legal authority to adopt.
(o) APA rulemaking requirements apply. If the commission proceeds with rulemaking resulting from the committee's consensus recommendation, the rule must be proposed, published for comment, and considered in accordance with all of provisions of Government Code Chapter 2001 Subchapter B regarding rulemaking requirements of the Administrative Procedure Act.
(p) Notice of proposed rulemaking. If the commission proposes rule language resulting from consensus of the negotiated rulemaking committee, the commission will publish notice in the Texas Register. The notice will include a statement that negotiated rulemaking was used in developing the proposed rule. The notice will state that the negotiated rulemaking committee's report is available to the public and will inform the public where and when the report may be reviewed.
(q) Conformity with law. Negotiated rulemaking does not, in any way, obviate the commission's jurisdiction or delegate the commission's decision or rulemaking authority. Negotiated rulemaking does not lessen the requirements of Government Code Chapter 2001 Subchapter B regarding rulemaking.
(r) Appointments. The commission may select any method of negotiation specified in Government Code Chapter 2008, including the appointment of a convener, negotiated rulemaking committee members, and a facilitator. Persons will be appointed to these positions by a majority vote of the commission. Persons appointed to these positions serve at the pleasure of the commission. The commission may remove a member from the committee by a majority vote of the commission.
(s) Conditions of appointment. Persons appointed as convener, negotiated rulemaking committee member, or facilitator will attend the committee meetings. Absence from two or more consecutive meetings without approval of the commission may result in removal of the person from the appointed position.
(t) Duration of appointment. Appointment of a person as convener, negotiated rulemaking committee member, or facilitator ends upon the earlier of:
(1) commission decision to end the negotiated rulemaking process;
(2) commission adoption of a rule resulting from the negotiated rulemaking process; or
(3) resignation from the appointed position.
(u) No compensation. Other than commission employees, persons appointed as convener, negotiated rulemaking committee member, or a facilitator shall serve without compensation and are not entitled to reimbursement from the commission for travel or per diem incurred in the performance of the appointed position.
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 March 30, 2009.
TRD-200901233
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 10, 2009
For further information, please call: (512) 463-3926
The Texas Residential Construction Commission (commission) proposes new 10 TAC §300.15, regarding the warranties and performance standards advisory committee. The proposed new rule is part of an overall plan to consolidate the commission's administrative rules. In this same issue of the Texas Register, the commission concurrently proposes repeal of the existing rule relating to the warranties and performance standards advisory committee, i.e., 10 TAC §301.3.
Proposed new §300.15 incorporates portions of §301.3, with modifications. Minor or inconsequential modifications of existing §301.3 are proposed regarding the commission's appointment of the committee members, staff's supporting role and administrative assistance to the committee, the original constituency of the committee, ineligibility of committee members to receive compensation, issuance of notice of committee meetings, public participation, recommendations by the committee to the commission for change to a performance standard, and the commission's annual evaluation of the cost and effectiveness of the committee.
Proposed §300.15 includes new provisions and excerpts from existing §301.3 that have been modified. For example, proposed §300.15 is formatted to allow for easier reading of the subsections; reflects the commission's current practice of making appointments to the committee during an open meeting February of each year and as necessary to fill an unfulfilled position; informs the reader as to the purpose and mission of the advisory committee; adds to the committee constituency a presiding officer for consistency with the requirements of Government Code §2110.003; provides procedures for the commission's removal of members from the committee; sets term limitations and attendance requirements for members; establishes the committee meeting requirements; clarifies the type of member and quantity of members that must be present at the advisory committee meeting to create a quorum; provides the procedures for members to add an item to the committee's agenda; encourages in-person participation by the public at a committee meeting, especially when a member of the public submits recommendations to the committee for change to a performance standard; and establishes the date in year 2013 for termination of the committee by operation of rule, unless continued by official commission action.
The provisions of §300.15 relate to a specific advisory committee, i.e., the warranties and performance standards advisory committee. Section §300.15 is proposed for consistency with §300.5, which provides the general rules applicable to any advisory committee the commission creates. The proposed rule is necessary to maintain the viability, balance, efficiency, and effectiveness of the warranties and performance standards advisory committee.
Subsection (a) is derived from and is consistent with existing §301.3(a). The proposed new rule reflects the commission's current practice of making appointments to the committee during an open meeting each February and as necessary to fill any open positions.
Proposed subsection (b) is derived from existing §301.3(b). It is the responsibility of the commission to make final decisions regarding the warranties and performance standards. However, this subsection clarifies that the purpose of the advisory committee is to provide information and serve as a technical resource to the commission in support of the commission's policy-making role.
Proposed subsection (c) requires the advisory committee to develop a mission statement. As discussed previously in this preamble, it is the commission's usual practice to make committee appointments each February. The committee will review the mission statement and consider whether modification to the mission statement is necessary. This review is scheduled to take place at the first committee meeting following the February appointments in order to promote consensus among the committee members as to the role, responsibility, and mission of the committee.
Proposed subsection (d) assigns to commission staff certain administrative duties to assist the committee in furtherance of its responsibilities. The staff is not a voting member of the committee, is not counted as a member of the committee for establishing a quorum of committee members, and assists the presiding officer of the committee in preparation of reports submitted to the commission. This proposed subsection is derived from and is consistent with existing §301.3(d).
Proposed subsection (e) describes qualifications of those persons whom the commission may appoint to fill a particular position on the committee. The proposed subsection is the language from existing §301.3(e), modified to emphasize the need for a diverse committee and to add a committee member from academia. The reason for specifying distinct positions is to achieve a committee that is sufficiently technical, balanced in representation of industry and consumer interests, and that serves its purpose in support of the commission's decision-making responsibilities. Adding a committee member from academia who favors neither builders nor homeowners and who is an expert in the building industry promotes this goal.
New subsections (f) and (g) relate to the committee's presiding officer and are proposed to implement Government Code §2110.003. The commission appoints members to the committee; the committee members select a presiding officer from among themselves. In an effort to maintain balance between industry and consumer interests, the presiding officer will participate in discussions about the warranty and performance standards. However, proposed subsection (g) provides that the presiding officer will not cast a vote except when the need arises to break a tie among the committee members. For the purpose of establishing a quorum of the committee members, the presiding officer will not be counted. The current presiding officer will serve until the commission's next series of appointments in February 2010. Thereafter, the committee will select its presiding officer from among themselves. The committee may select any member to be the presiding officer, including the current presiding officer, because the person currently serving as the presiding officer is not a member of the committee and because the individual serves in that position until a qualified replacement is selected by the committee. The commission considers this to be completion of an unfulfilled term without membership. With the proposed addition in subsection (e) of the faculty member position as a member of the committee, the existing §301.3(c) is omitted from proposed new §300.15.
New proposed subsection (h) provides the terms' expiration in accordance with members' appointments to the various positions described in proposed subsection (e). This proposed subsection is derived in part from and is consistent with existing §301.3(g). This advisory committee is well established; therefore, it is no longer necessary for the commission's rule to describe the method by which the initial appointment terms were originally staggered. Instead, it is necessary to describe when the appointment term expires. In other words, the position dictates the term's expiration rather than the length of time served by the person in the particular position. The proposed subsection describes which positions' terms expire in even-numbered and in odd-numbered years. There exist two positions on the committee that are filled by two persons. Therefore, each year one of the two persons' positions will expire. Of the two persons, the one whose term expires is the one with the greatest length of service to the committee in that position. The first full term for the academic faculty position described in subsection (e)(9) of this proposed rule begins February 2010. The commission may appoint a person to the position before February 2010. However, if the commission makes the appointment before February 2010, the individual would not be able to serve a full term due to the timing of the effective date of this rule. Therefore, the first time that position expires is February 2012.
Proposed subsection (i), conditions of membership, is also derived in part from and is consistent with existing §301.3(g). This subsection establishes that a member continues to serve in a position until a qualified replacement is appointed. In addition, the proposed subsection creates for each member a responsibility to notify the committee's presiding officer and the executive director, in writing, if the member experiences a change in status that makes the person ineligible to serve in the position on the committee to which the commission made its appointment, which will then allow the commission to take action to replace that person if it so desires.
New subsection (j) is proposed to establish two ways for removing a member from the committee. The commission may, on its own motion, remove any member at any time for any reason. An administrative process is also available for the chair of the commission to remove a member from the committee if the member fails to meet minimum attendance requirements or experiences a change in status thereby making the person ineligible to fill the position on the committee for which the commission appointed the individual.
For example, if a person were appointed in the capacity of a professional engineer and subsequently forfeited the professional engineering license for any reason, then the person would no longer be eligible to fill that position. Similarly, if a person were appointed to fill one of the homeowner representative positions and thereafter accepted employment working in public relations for a builder's trade association, then the individual would no longer be eligible to serve on the committee in the position for which the commission appointed that member. As discussed, a member who experiences a change in status that makes the person ineligible is required to inform the presiding officer of the committee and the executive director. The new subsection is proposed to afford the commission a process for the efficient removal of members who are unable or ineligible to serve the committee. Thereafter, the commission may appoint a qualified replacement to the committee. The proposed new subsection should have an immediate and direct positive impact on the effectiveness of the advisory committee.
New subsection (k) is proposed to establish limitations on the terms for which the commission may appointment a member. If a member serves two consecutive two-year terms, the commission will not reappoint the member until after the member has experienced a break in service to the committee. However, a member is eligible to serve two consecutive two-year terms on the committee, break from service, and then return to the committee as an appointed member for another two consecutive two-year terms. The proposed subsection clarifies that a committee member's time spent in appointment to complete an unfulfilled term does not count toward calculation of the term limitation.
Consider, for example, if a member resigns voluntarily from service to the committee. The commission appoints a replacement to the committee in accordance with the requirements of this rule. The replacement serves the committee, fulfilling the last four months remaining on the previous member's unfulfilled term. Seeing that the replacement has attended the called committee meetings and has made significant contributions toward the committee's mission, the commission decides to appoint the replacement as a member for a two-year term. In this example, the replacement's four months of service to complete the previously unfulfilled term of the former member does not contribute toward the member's term limitations as set forth in this subsection.
Proposed subsection (l) is derived from §301.3(i). Currently, the committee is required to meet twice a year unless directed otherwise by the commission. The proposed subsection increases the number of required committee meetings to at least quarterly. However, the committee may meet more often than four times a year. The proposed new rule affords the presiding officer an opportunity to call additional committee meetings.
New subsection (m) is proposed to establish minimum attendance requirements for committee members, requires members be in attendance to be counted present, and disallows attendance by proxy. The committee cannot function efficiently or be an effective resource to the commission if the members do not regularly attend committee meetings.
Proposed subsection (n) is derived from and is consistent with existing §301.3(h). Members of the committee are volunteers. Proposed subsection (n) affirms that no compensation will be afforded to the members, including travel unless authorized by other law. The rule provision is consistent with the provisions of Government Code §2110.004.
New subsection (o) is proposed to clarify that members may discuss warranties and performance standards at any meeting; however, voting decisions or official action may only be taken during a committee meeting with a quorum of the voting members present. A quorum is established by the presence of seven or more voting members. Although the presiding officer will cast a vote when the committee's vote results in a tie, the presiding officer's presence does not count toward establishment of the committee's quorum. Likewise, the presence of the executive director or the executive director's designee does not count toward establishment of a quorum because these individuals are not voting members of the committee appointed by the commission.
Proposed subsection (p) provides requirements for proper notice of the committee meetings. This proposed subsection is derived from and is consistent with existing §301.3(j).
New subsection (q) is proposed to establish the procedures by which any member of the committee may request an item be added to the committee meeting agenda. If a member requests change of a performance standard, the member will submit the request, the recommendation, and supporting materials no later than thirty days before the committee meeting. When other types of recommendations are requested for posting to the committee's agenda, the member may submit the request no later than the fifteenth day before the meeting. The proposed deadlines are needed to accommodate notice requirements under Government Code Chapter 551 and to allow adequate time for distribution of the materials to the committee members before the committee meeting.
Proposed subsection (r) is included to encourage public participation in the advisory committee meetings, especially when a member of the public suggests a change that the committee members will discuss and consider at a committee meeting. This proposed subsection is derived from existing §301.3(k).
Proposed subsection (s) requires the presiding officer of the committee to submit a report to the commission, including the committee meeting minutes, summary of the meeting, and the committee's recommendations. The proposed subsection is derived from existing §301.3(l). The proposed rule omits the thirty-day deadline for preparation and submission of the report to the commission.
Proposed subsection (t) prescribes the process by which the committee will submit recommendations for change to a performance standard. The proposed subsection is derived from and is consistent with existing §301.3(m).
Proposed subsection (u) requires the commission's evaluation of the costs and effectiveness of the advisory committee each year. The proposed subsection is derived from and is consistent with existing §301.3(n).
Proposed subsection (v) establishes that the committee will continue to exist through April 30, 2013. The proposed subsection is derived from existing §301.3(o) and is consistent with the requirements of Government Code §2110.008.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five-year period the proposed new rule is in effect, there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the proposed new rule is in effect the public will benefit from having all rules related to the commission's administration consolidated into a single chapter of the Texas Administrative Code. In addition, the public will benefit because the proposed rule provides clarity regarding the committee's roles, responsibilities, procedures, and processes, thereby effectuating efficiency for the committee which in turn should increase the support provided by the advisory committee to the commission. There will be no effect on individuals or on large, small, or micro businesses as a result of the proposed rule because the rule is being moved to another administrative rule chapter.
Ms. Durso has also determined that for each year of the first five-year period the proposed new rule is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act §2001.022.
Written comments (12 copies) on the proposed new rule may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, by delivery to 311 East 14th Street, Austin, Texas 78701; or by fax to (512) 475-0561; or by mail to P.O. Box 13509, Austin, TX 78711-3509. Comments submitted by mail must be post marked by the deadline date. In the alternative, comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Rulemaking on Warranties and Performance Standards Advisory Committee" in the subject line. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed new rule in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration. Comments on the simultaneously proposed repeal of §301.3 of this title may be submitted together with comments on this proposed new §300.15. Comments submitted electronically to a different email address or that do not have "Rulemaking on Warranties and Performance Standards Advisory Committee" in the subject line may not be considered.
The new rule is proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16; Government Code Chapter 2110 regarding the requirements of state agency advisory committees; and the Administrative Procedure Act, Government Code Chapter 2001.
No other statute, article, or code is affected by the proposal.
§300.15.Warranties and Performance Standards Advisory Committee.
(a) Commission appointment. The commission shall appoint an advisory committee to be referred to as the Warranties and Performance Standards Advisory Committee. The commission shall make appointments to the advisory committee each February and as otherwise required to maintain the committee in accordance with the requirements of this section.
(b) Purpose. The purpose of the committee is to provide a mechanism that allows for regular and reasoned review of the residential construction performance standards adopted by the commission. The committee's role is to provide information to the commission and to serve as a technical resource in support of the commission's policy-making function. The committee shall review and evaluate proposed changes to the performance standards made either by the public or internally by the commission, and make recommendations to the commission.
(c) Mission statement. The committee shall create a mission statement. The committee shall review and consider revision of the mission statement at the first committee meeting following the commission's appointments to the advisory committee in February in accordance with the requirements of subsection (a) of this section.
(d) Staff. The executive director shall appoint a member of the commission staff to serve and assist the committee. This position shall be non-voting. This person shall keep minutes of committee meetings, prepare those minutes for approval by the presiding officer of the committee, and shall assist the presiding officer in preparing the reports required by this section.
(e) Committee constituency. To achieve a diverse advisory committee, the commission shall appoint members from each of the following industry and consumer interests:
(1) One third-party inspector certified by the commission under Chapter 303 of this title.
(2) One professional engineer certified by the commission under Chapter 303 of this title.
(3) Two persons not licensed by the State Bar of Texas, knowledgeable in the construction industry, who have provided a material amount of assistance on behalf of consumers or homeowner interests in legal and non-legal matters.
(4) Two persons who are homeowners, who are not builders and who do not own and are not employed or otherwise engaged in a trade involving residential construction.
(5) One attorney licensed in the State of Texas with a significant history of representing consumers in the area of alleged home construction disputes with builders.
(6) Three persons, each of whom is a registered builder or representative of registered builders under Chapter 303 of this title. It is the desire of the commission that these members shall represent remodelers and builders of different sizes as determined by the volume of residential construction projects registered with the commission in a single calendar year.
(7) One person who is a representative of a trade association that is composed of builders, remodelers and associate members related to residential construction.
(8) One attorney licensed in the State of Texas with a significant history of representing builders in the area of alleged home construction disputes with homeowners.
(9) Starting in year 2010, one faculty member from a general academic teaching institution as that term is defined under Education Code §61.003, with expertise in:
(A) construction science or construction management;
(B) architectural engineering with emphasis in residential structural design and construction;
(C) civil engineering with emphasis in residential structural design and construction;
(D) engineering sciences with emphasis in residential structural design and construction;
(E) structural engineering with emphasis in residential structural design and construction;
(F) mechanical engineering with emphasis in residential structural design and construction;
(G) architecture with emphasis in residential structural design and construction; or
(H) other related subject matter with emphasis in residential structural design and construction.
(f) Presiding officer selection. Annually, at the first meeting after February of each year, the advisory committee members will select from among themselves a neutral presiding officer who will strive to maintain balance among the committee members and facilitate open dialogue. The presiding officer will be one of the following three members:
(1) the third-party inspector certified by the commission under Chapter 303 of this title appointed by the commission to fill the committee position described under subsection (e)(1) of this section;
(2) a professional engineer certified by the commission under Chapter 303 of this title appointed by the commission to fill the position described under subsection (e)(2) of this section; or
(3) a faculty member from a general academic teaching institution appointed by the commission to fill the position described under subsection (e)(9) of this section.
(g) Presiding officer. The advisory committee's presiding officer:
(1) schedules and conducts the committee meetings;
(2) serves as the lead administrator;
(3) promotes discussion on substantive standards and technical considerations;
(4) manages the member's discussion, ensuring the opportunity for balanced input from each member and from the public;
(5) directs dialogue away from policy-making matters;
(6) advocates positions representing the balanced interests of all agency stakeholders; and
(7) does not cast a vote, except in the case of a tie of the advisory committee members when a quorum is present.
(h) Expiration of terms. The term of office shall be staggered for a two-year term for each member appointed by the commission under subsection (e) of this section. Appointment of a member to complete an unfulfilled term does not affect expiration of the term.
(1) Each odd numbered year, the appointment term expires for the:
(A) third-party inspector certified by the commission under Chapter 303 of this title;
(B) attorney licensed in the State of Texas with a significant history of representing consumers in the area of alleged home construction disputes with builders.
(C) registered builder or representative of registered builders under Chapter 303 of this title that was appointed to represent remodeler and builder companies with a medium volume of registered homes; and
(D) person who is a representative of a trade association that is composed of builders, remodelers, and associate members related to residential construction;
(2) Each even numbered year, the appointment term expires for the:
(A) professional engineer certified by the commission under Chapter 303 of this title;
(B) registered builder or representative of registered builders under Chapter 303 of this title that was appointed to represent remodeler and builder companies with a small volume of registered homes;
(C) registered builder or representative of registered builders under Chapter 303 of this title that was appointed to represent remodeler and builder companies with a large volume of registered homes;
(D) attorney licensed in the State of Texas with a significant history of representing builders in the area of alleged home construction disputes with homeowners; and
(E) faculty member from a general academic teaching institution.
(3) Each year, the appointment term expires for:
(A) the member with the longer term of service of the two persons who are homeowners, who are not builders and who do not own and are not employed or otherwise engaged in a trade involving residential construction; and
(B) the member with the longer term of service of the two persons not licensed by the State Bar of Texas, knowledgeable in the construction industry, who have provided a material amount of assistance on behalf of consumers or homeowner interests in legal and non-legal matters.
(i) Conditions of membership. Membership to the advisory committee is conditional. A member whose term has expired shall continue to serve until a qualified replacement is appointed by the commission. In the event that a member appointed by the commission cannot complete his or her term or is removed by the commission, the commission shall appoint a qualified replacement to serve the remainder of the term. If a member experiences a change in status making the member ineligible to serve in the position described in subsection (e) of this section for which the commission made the appointment, the member shall provide written notification of the change in status to the presiding officer of the committee and to the executive director.
(j) Removal of member. Members of the committee serve at the pleasure of the commission. Members of the advisory committee may be removed:
(1) by a majority vote of the commission for any reason; or
(2) by administrative action taken at the discretion of the commission chair in response to:
(A) the member's failure to meet the attendance requirements described in this section;
(B) a change in the member's status that makes the member ineligible for service in the capacity for which the commission appointed the member; or
(C) a member's voluntary resignation.
(k) Term limitations. The terms of a member's service to the committee are limited.
(1) A member may not serve more than two consecutive two-year terms on the advisory committee. After a minimum break of two years from service on the advisory committee, the commission may reappoint a former member who has previously served two consecutive terms on the advisory committee.
(2) The presiding officer serves a one-year term as presiding officer. The presiding officer may serve more than one, one-year term. The members of the advisory committee shall not choose a presiding officer that does not meet the requirements of paragraph (1) of this subsection.
(3) The time a member serves appointed to the committee to complete an unfulfilled term does not contribute toward calculation of any term limitation under this subsection.
(l) Committee meetings. The committee shall meet at least quarterly. The commission will post a list of the anticipated quarterly meeting dates on its website. The presiding officer may call additional committee meetings, as necessary. The committee shall be subject to meeting at the call of the presiding officer.
(m) Attendance requirements. It shall be the goal of each member to attend all committee meetings.
(1) Members must be in attendance at the committee meeting to be counted present.
(2) Members may not be counted present by proxy.
(3) If the committee meets only quarterly, each member is required to be present at two or more of the quarterly meetings in a twelve month period.
(4) If the committee meets more often than quarterly in a twelve-month period, each member is required to be present at more than one-half of the total number of committee meetings in a twelve month period.
(5) If a member is not present at the required number of meetings, the presiding officer shall forward to the commission chair a statement of the number and dates of absence and any available information regarding the reasons for the absence and the member's historical participation levels, so that the commission can make a decision on whether to replace the member.
(n) No compensation. Committee members appointed by the commission shall serve without compensation. Members are not entitled to reimbursement from the commission for travel or per diem incurred in the performance of their official duties, unless such reimbursement is expressly provided for in the agency's general appropriations.
(o) Quorum. Any number of committee members may meet; however, to take a vote or to take official action, a quorum of committee members must be present during the advisory committee meeting and vote. A quorum consists of a minimum of seven voting members. The presence of the presiding officer does not contribute toward establishment of a quorum. The presence of the executive director or the executive director's designee does not contribute toward establishment of a quorum.
(p) Notice of meeting. The presiding officer shall coordinate with the commission to ensure all interested parties are provided with reasonable notice of the committee meeting. All public notices of upcoming meetings shall encourage interested parties to make suggested changes to the performance standards to the committee for its consideration. Each notice of meeting shall include information on how to submit to the committee suggested changes to the performance standards. All meetings shall be conducted in accordance with Chapter 551 of the Government Code and notices of meetings shall be posted in compliance with Chapter 551 of the Government Code.
(q) Committee agenda. A member may add a relevant item to the committee meeting agenda by submitting a written request to the staff described in subsection (d) of this section.
(1) A member must submit recommendations for change to a performance standard at least thirty days before the committee meeting and must include:
(A) supporting materials;
(B) a brief explanation of the performance standard;
(C) the reason the new or amended performance standard should be adopted or repealed; and
(D) the complete text of the suggested change, striking through the words to be deleted from the current performance standard and underlining the words to be added to the current performance standard.
(2) A member must submit recommendations other than those relating to a performance standard modification and any supporting materials at least fifteen days before the committee meeting.
(3) A member's request for an item to be added to the committee agenda is not a petition for rulemaking under §300.12 of this title.
(r) Public participation. Any interested person may submit to the advisory committee a suggested change to the warranty and performance standards.
(1) The committee must receive a suggested change to the performance standards no later than thirty days before the committee's next public meeting.
(2) A suggested change to the performance standards shall be in writing and shall include a brief explanation of the performance standard, the reason the new or amended performance standard should be adopted or repealed, and complete text for the suggested change.
(3) All proposed text to amend a performance standard shall be indicated by striking through the words, if any, to be deleted from the current performance standard and by underlining the words, if any, to be added to the current performance standard.
(4) The submission to the committee of a suggested change to the performance standards shall not be considered a petition for rulemaking under §300.12 of this title.
(5) A person who submits a suggested change should attend the committee meeting and participate in the discussion to advocate the person's desired outcome.
(s) Reports. For each committee meeting, the presiding officer shall prepare a report and provide it to the commission. The committee report shall contain the minutes of the meeting, a memo summarizing the meeting, and recommendations by the committee.
(t) Recommendations. If the committee recommends a change to the performance standards, the committee shall submit a draft rule to the commission for consideration for rulemaking. The committee shall attach the original suggested change to the draft rule. The committee shall also report to the commission a synopsis of all suggested changes submitted to the committee that the committee declined to recommend. The commission shall consider the committee's report at a public commission meeting following submission of the committee's report.
(u) Evaluation of costs and effectiveness. The commission shall evaluate the committee annually. Evaluation shall be conducted by an evaluation team appointed by the executive director. The evaluation team shall report to the commission in open meeting each August the findings regarding the committee's work, usefulness, and the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee. The commission shall report this information to the Legislative Budget Board biennially in connection with the commission's request for appropriations.
(v) Committee continuation. The Warranties and Performance Standards Advisory Committee shall be abolished on April 30, 2013, unless otherwise continued by a majority vote of the commission prior to the date of expiration.
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 March 30, 2009.
TRD-200901237
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 10, 2009
For further information, please call: (512) 463-3926
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Residential Construction Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Residential Construction Commission (commission) proposes repeal of 10 TAC §301.3, regarding the warranties and performance standards advisory committee. The proposed repeal is part of an overall plan to consolidate the commission's administrative rules. The repeal of §301.3 is the last section of Chapter 301 to be repealed. As a result of consolidating the general provisions rules into other chapters, Chapter 301 will be available for the commission's implementation of substantive rules. In this same issue of the Texas Register, the commission concurrently proposes a new rule, §300.15, incorporating the language of repealed §301.3, with changes.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five-year period that the repeal is in effect, there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the repeal is in effect, the public will benefit from having all rules related to agency administration consolidated into a single chapter of the Texas Administrative Code. There will be no effect on individuals or large, small, or micro businesses as a result of the repeal because the rule is being moved to another administrative rule chapter.
Ms. Durso has also determined that for each year of the first five-year period the repeal is in effect, there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act §2001.022.
Written comments (12 copies) on the proposed repeal may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, 311 E. 14th Street, Austin, Texas 78701, or by fax to (512) 475-0561. In the alternative, comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Rulemaking on Warranties and Performance Standards Advisory Committee" in the subject line. Comments on the simultaneously proposed new §300.15 of this title may be submitted together with comments on this proposed repeal of §301.3. Comments submitted electronically to a different email address or that do not have "Rulemaking on Warranties and Performance Standards Advisory Committee" in the subject line may not be considered. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed repeal in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule repeal under consideration.
The repeal is proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16; Government Code Chapter 2110 regarding state agency advisory committees; and the Administrative Procedure Act, Government Code Chapter 2001.
No other statute, article, or code is affected by the proposal.
§301.3Warranties and Performance Standards Advisory Committee.
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 March 30, 2009.
TRD-200901236
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 10, 2009
For further information, please call: (512) 463-3926
The Texas Residential Construction Commission (commission) proposes amendments to 10 TAC §307.7, relating to failure to comply with inspection requirements for residential construction in areas not subject to municipal inspections.
Pursuant to changes in Title 16 of the Property Code that became effective on September 1, 2008, builders and remodelers who undertake certain residential construction projects in areas not subject to municipal inspections are required to have those projects inspected at several stages of construction. This requirement for interim construction inspections, which are similar to the code compliance inspections required on residential projects built within most municipalities, provides homebuyers and homeowners who live in areas not subject to municipal inspections the same level of assurance of quality construction that those with construction projects subject to municipal inspections enjoy. Because this requirement is relatively new, the commission anticipates that some builders and remodelers will either be unaware of the requirement at the time of construction or will forget to have a phase inspection performed before moving to the next phase of construction. Still others may choose to intentionally ignore the requirements.
New home construction must have an inspection prior to the pouring of a foundation, prior to the installation of wall coverings for plumbing and electrical inspections, and at the substantial completion of the project. For remodeling projects and material improvements, inspections are required for the same phases to the extent that the inspection is applicable to the work performed. For the phase inspections that are performed before completion of the project, it can be difficult to access or view the relevant components to determine whether they were correctly installed.
The commission sought input from interested parties on methods of forensic investigation that might provide some level of assurance. The results of that informal query led the commission to conclude that there are a variety of forensic evaluations that could be appropriate for different construction methods and different phases of construction; therefore, it is best left to the investigating expert to determine which forensic tests need to be performed for the expert to issue an opinion that the home has been constructed properly. Forensic evaluations performed post-construction are likely to cost the builder or remodeler more than if the inspections had been conducted at the correct phases of construction. Therefore, the commission is revising its rule on the consequences for failure to conduct the proper phase inspections and the penalties associated with that failure to provide incentives for builders/remodelers to have post-construction forensic evaluations performed when phase inspections have not been timely performed. The commission's proposed amendments recognize that an unintentional failure to have the required inspections performed should not subject the builder to the same penalties that an intentional failure to abide by the law would require.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five-year period that the proposed amendments are in effect there will be a minor increase in expenditures or revenue for state government, if a greater number of penalties are collected for violations of the inspection requirements. There will be no fiscal impact for state or local government as a result of enforcing or administering the amended rule.
Ms. Durso has also determined that for the first five years the proposed amendments are in effect the public will benefit from the amended rule. The increased cost to remedy the failure to comply with state law will serve as an incentive for builders and remodelers to have the phase inspections performed timely and will deter future non-compliance. Homeowners will have greater assurance that their homes have been properly constructed.
Ms. Durso has also determined that the anticipated economic cost to small businesses or persons who are required to comply with the proposed amendments will be within the control of those businesses and persons. Increased costs can be avoided by complying with the phase construction inspection requirements.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect there should be no affect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act, §2001.022.
Ms. Durso has also determined that for each year of the first five-year period the proposed amendments are in effect any adverse economic affect on small businesses is completely within the control of the business. The law requires that phased construction inspections be performed; increased costs of construction resulting from having to comply with the amendments are completely avoidable. Therefore, no regulatory flexibility analysis is necessary.
Written comments (12 copies) on the proposed amendments may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, by mail to P.O. Box 13509, Austin, TX 78711-3509; by hand to 311 E. 14th Street, Austin, Texas 78701; or by fax to (512) 463-9507. Comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Rule 307.7 - Failure to Comply with Inspection Requirements" in the subject line. The deadline for submission of comments is thirty (30) days from the date of publication of the proposed amendments in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration. Comments submitted electronically to a different email address or that do not have "Rule 307.7 - Failure to Comply with Inspection Requirements" in the subject line may not be considered.
The amendments are proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16 of the Property Code; and Property Code, Title 16, Subtitle F, requiring inspection of certain new residential construction.
No other statutes, articles, or codes are affected by the proposed amendments.
§307.7.Failure to Comply with Inspection Requirements.
(a) A builder or remodeler who fails to comply with the inspection requirements of this chapter will be subject to disciplinary action pursuant to the provisions of Chapter 305 of this title.
(b) The first time that the commission becomes aware that a builder/remodeler has neglected to have a phase inspection performed as required by this chapter, if the builder/remodeler brings the matter to the attention of the commission or is forthcoming with the commission about the oversight in response to a commission inquiry, and the builder/remodeler demonstrates that its failure to have the proper inspections performed was not the result of an intentional disregard for the law requiring inspections of new residential construction in areas in which a municipal inspection is not conducted, the commission will:
(1) notify the homeowner by letter that the builder/remodeler failed to comply with the County Inspection Program and the letter will identify the phases of construction that the new home or construction project should have been inspected;
(2) provide the builder/remodeler with a copy of the law and a link to the commission website for information about the inspection program and requirements; and
(3) undertake disciplinary action pursuant to subsection (a) of this section, in which the commission will offer the builder/remodeler an opportunity to enter an agreed order for disciplinary action including a reprimand and a minimum penalty of $1,500 for each phase of the inspection not timely performed or in lieu of accepting a reprimand and monetary penalty, the builder/remodeler can choose the option to have post-construction forensic evaluations performed for all required phases of construction that were not timely performed, as further described in subsection (h) of this section.
(c) The first time that the commission becomes aware that a builder/remodeler has neglected to have a phase inspection performed as required by this chapter, if the builder/remodeler has not been forthcoming with the commission about the oversight, but demonstrates that its failure to have the proper inspections performed was not the result of an intentional disregard for the law requiring inspections as described in this chapter, the commission will:
(1) notify the homeowner by letter that the builder/remodeler failed to comply with the County Inspection Program and the letter will identify the phases of construction that the new home or construction project should have been inspected;
(2) provide the builder/remodeler with a copy of the law and a link to the commission website for information about the inspection program and requirements; and
(3) undertake disciplinary action pursuant to subsection (a) of this section, in which the commission will offer the builder/remodeler an opportunity to enter an agreed order for disciplinary action including a reprimand and a minimum penalty of $3,000 for each phase inspection not timely performed or in lieu of accepting the monetary penalty, the builder/remodeler can choose the option to have post-construction forensic evaluations performed for all required phases of construction that were not timely performed, as further described in subsection (h) of this section.
(d) The first time that the commission becomes aware that a builder/remodeler has neglected to have a phase inspection performed as required by this chapter, if the builder/remodeler is not forthcoming with the commission about the oversight and cannot demonstrate that its failure to have the proper inspections performed was not the result of an intentional disregard for the law requiring inspections as described in this chapter, the commission will:
(1) notify the homeowner by letter that the builder/remodeler failed to comply with the County Inspection Program and the letter will identify the phases of construction that the new home or construction project should have been inspected;
(2) provide the builder/remodeler with a copy of the law and a link to the commission website for information about the inspection program and requirements; and
(3) undertake disciplinary action pursuant to subsection (a) of this section, in which the commission will offer the builder/remodeler an opportunity:
(A) to enter an agreed order for disciplinary action including a reprimand and a penalty of $5,000 for each phase of inspection not timely performed; or
(B) to accept a reprimand and a total penalty of not greater than $10,000 and have post-construction forensic evaluations performed for all required phases of construction that were not timely performed, as further described in subsection (h) of this section.
(e) For all instances after the first time that the commission becomes aware that a particular builder/remodeler has failed to have a phase inspection performed as required by this chapter, the commission will presume that the failure is the result of an intentional disregard for the law requiring phase inspections and will pursue appropriate disciplinary action for the violation under Chapter 305 of this title.
(f) After notification by the commission that it has become aware that builder or remodeler failed to timely have a phase inspection performed as required by this chapter under subsections (b), (c), (d), and (e) of this section, the builder or remodeler will be provided an opportunity to present information to the commission that the builder/remodeler's failure to have a phase inspection performed as required by this chapter is not the result of an intentional disregard for the law and that information will be considered in determining the appropriate disciplinary action for the violation of this chapter.
(g) If a builder/remodeler neglects to have a phase inspection performed as required by this chapter but has a post-construction forensic evaluation performed and submits the results of the evaluations to the commission and to the homeowner for the subject property before receiving a notice of the failure to comply from the commission, the commission will presume that the failure to comply was not intentional.
(h) A builder/remodeler that has post-construction forensic evaluation performed under subsection (g) of this section or as a part of the penalty for failure to comply with this chapter must submit the following documentation for each applicable phase of construction not timely performed:
(1) For a foundation inspection, the builder/remodeler must submit an opinion letter signed and sealed by a licensed professional engineer that the engineer has performed an inspection of the foundation in accordance with generally accepted standards of engineering practice and has determined that the foundation will serve its intended purpose to the best of the engineer's knowledge. The letter must include a report on the inspection, including the forensic tests performed and any measurements taken, regardless of whether relied upon to make the determination.
(2) For an inspection of the framing and mechanical systems prior to the installation of insulation, wall board, or other wall covering facing the home's interior, the builder/remodeler must submit an opinion letter from a fee inspector qualified under this chapter to perform phase inspections affirming that the fee inspector has determined that the framing and mechanical systems are installed in compliance with the applicable Code. The letter must include a report on the inspection performed including any forensic tests performed and any measurements taken, regardless of whether relied upon to make the determination.
(3) For a final inspection upon substantial completion of the project, the builder/remodeler must submit an opinion letter from a fee inspector qualified under this chapter to perform phase inspections affirming that the fee inspector has determined that installation, operation, and performance of each aspect of the substantially completed project meets all applicable Code. Final inspection upon substantial completion of the project includes but is not limited to plumbing, electric, and mechanical delivery systems; yard grading; attic insulation; ventilation; egress; International Residential Code (IRC); and National Electric Code (NEC) requirements. The letter must include a report of the forensic tests performed and any measurements taken, regardless of whether relied upon to make the determination that all Code requirements are met.
(i) If a builder/remodeler has a post-construction forensic evaluation performed as part of the penalty for failure to comply with this chapter under subsection (h) of this section, the commission will provide that information to the homeowner.
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 March 30, 2009.
TRD-200901240
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 10, 2009
For further information, please call: (512) 463-3926