The Texas Department of Licensing and Regulation ("Department") adopts amendments to existing rules at 16 Texas Administrative Code, §§83.10, 83.20 - 83.26, 83.28, 83.31, 83.40, 83.65, 83.70 - 83.73, 83.75, 83.80, and 83.90; new rule §§83.29, 83.100 - 83.114, and 83.120; and the repeal of §§83.100 - 83.103 in the cosmetology program. The amendments to §§83.10, 83.22 - 83.26, 83.28, 83.40, 83.65, 83.70, 83.73, 83.75 and 83.90; new rule §§83.104, 83.105, 83.107, 83.110, 83.112, and 83.120; and the repeal of §§83.100 - 83.103 are adopted without changes from the rules as published in the December 23, 2005, issue of the Texas Register (30 TexReg 8553), and will not be republished. The amendments to §§83.20, 83.21, 83.31, 83.71, 83.72, and 83.80; and new rule §§83.29, 83.100 - 83.103, 83.106, 83.108, 83.109, 83.111, 83.113, and 83.114 are adopted with changes from the rules as published in the December 23, 2005, issue of the Texas Register (30 TexReg 8553) and are republished with changes.

The amendments, new rules, and repeal are necessary to implement provisions of Senate Bill 411 ("SB 411") and House Bill 1304 ("HB 1304"), 79th Legislature, Regular Session, 2005; to clarify existing rules; to reorganize and update rule requirements of cosmetologists, particularly health and safety requirements; and to provide greater efficiency in the administration of the cosmetology program.

This rule adoption is part of a second phase of rulemaking pursuant to SB 411, 79th Legislature, Regular Session, 2005, that transferred the regulation of cosmetology to the department. The amendments to §§83.10 and 83.20-83.24 provide greater efficiency and clarity in the cosmetology licensing and examination processes. The amendment to §83.28 implements SB 411, 79th Legislature, Regular Session 2005, to add provisional licensure rules for applicants seeking a license by reciprocity. In addition, the repeal of §§83.100 - 83.103 and new rules §§83.100 - 83.114, relating to health and safety standards are necessary to implement provisions of SB 411 and HB 1304. The purpose of the repeals are to reorganize the health and safety standards to §§83.100 - 83.114. New rule §83.120, relating to curriculum, is relocated from §83.101. The rules provide efficiency for the department's operations and administration of the chapter.

The amendment to existing §83.10 adds definitions for a booth rental license, license by reciprocity, and provisional license. Additionally, for clerical purposes, the word Department is changed to department throughout the section.

The amendment to existing §83.20, relating to licensing requirements, clarifies subsection (b) to state that an applicant must pass a written, practical and oral examination to obtain an instructor license. Additionally, subsection (e) is amended to delete the reference to a student-instructor registration, as students of any type will hold a student permit. New subsection (g) states that a license application is valid for one year from the date it is filed with the department. For clerical purposes, the word Department is changed to department throughout the section. Similarly, hair weaving is changed to two words instead of one throughout the section.

The amendment to existing §83.21(a) relating to examination requirements, clarify that eligibility for examination requires a license application, license fee, and the completion of the required curriculum hours. This amendment streamlines an applicant's licensure, as an examination is a license requirement. Also, this amendment deletes a requirement that an applicant submit a photograph. The amendment to subsection (b) states that a student is eligible to take an early written examination in accordance with Texas Occupations Code §1603.255. The amendment to subsection (c) states that an applicant must pass the written examination before being eligible to take the practical examination. Additional amendments clarify that an examinee must bring to a practical examination instruments required to demonstrate cosmetology services, that an examinee must present a government-issued, photo identification with an examinee's full name and date of birth to be admitted to an examination, and that an examinee must be dressed in a smock or be professionally dressed for the practical examination.

The amendment to existing §83.22 clarifies salon and booth rental licensee obligations to comply with Texas Occupations Code, Chapters 1602 and 1603, and department rules and to have a copy of the current law and rules book. Change of ownership, including death or incompetency of a salon owner are deleted from this section and added to new rule §83.29. For clerical purposes, the word Department is changed to department throughout the section.

The amendment to existing §83.23, relating to school licensure, provides a re-organization to bring existing requirements to the same rule section, such as floor plan requirements for licensure. Change of ownership, including death or incompetency of a school owner are deleted from this section and added in new rule §83.29. The amendment states that school applicants must show financial soundness through financial statements prepared by a certified public accountant. For clerical purposes, the word Department is changed to department throughout the section.

The amendment to existing §83.24 clarifies the rule for inactive license status and clarifies that renewal of a license on inactive status. For clerical purposes, the word Department is changed to department throughout the section.

The amendment to existing §83.25 is to provide a change in citation to the curriculum to new §83.120. Also, for clerical purposes, the word Department is changed to department throughout the section. Similarly, hair weaving is spelled as two words instead of one throughout the section.

The amendment to existing §83.26 changes the word Department to department throughout the section.

The amendment to existing §83.28 is to provide rules relating to provisional licensure in accordance with Texas Occupations Code §1603.203. The amendment to subsection (a) clarifies that an applicant for licensure by reciprocity must pay the reciprocity fee, the license application fee, and the law and rules book fee. Further amendments are for clerical purposes in changing the word Department to department and in changing the word nation to country.

New rule §83.29 is a re-organization of rules relating to change of ownership or relocation of a cosmetology establishment. The rule also clarifies the definition for change of ownership.

The amendment to existing §83.31 is to state that a student permit is valid for two years. For clerical purposes, hair weaving is spelled as two words instead of one.

The amendment to existing §83.40 and §83.65 changes the word Department to department for clerical purposes.

The amendment to existing §83.70 clarifies that licensees are responsible for health and safety standards under the rules, that an independent contractor must obtain a booth rental license, and that licensees shall notify the department of a name change. The amendment also requires licensees to wear outer garments, not to include lingerie or see-through fabric. Also, the word Department is changed to department.

The amendment to existing §83.71, relating to salon responsibilities, re-organizes existing requirements for salons and booth rental licensees (independent contractors) and adds them to this section. An amendment is made to salon and booth rental licensee equipment to have a clean, dry, debris-free storage area and a suitable receptacle for used towels and linens. The requirement that no animal other than fish kept in an aquarium be permitted in a salon except as those animals providing assistance to individuals is moved to new §83.114, health and safety standards for establishments. The rule clarifies that establishments are responsible for health and safety standards under the rules, that alterations to a floor plan must be done in accordance with the rules and Texas Occupations Code, Chapters 1602 and 1603, and that salons and booth rental licensees are required to have a copy of the current law and rules book.

The amendment to existing §83.72, relating to school responsibilities, clarifies that establishments are responsible for health and safety standards under the rules, that alterations to a floor plan must be done in accordance with the rules and Texas Occupations Code, Chapters 1602 and 1603, and that salons and booth rental licensees are required to have a copy of the current law and rules book. The rule also re-organizes existing facility and equipment requirements for schools and adds them to this section. Also, the amendment allows schools to establish school rules of operation and conduct, including rules relating to absences and student clothing. Further, the amendment clarifies the applicability of Texas Occupations Code §1602.456 by deleting the more narrowly written rule relating to the completion of 150 hours of training to be completed before a private school student may work on a client. Under §1602.456, depending on the course length, the completion of 10% of coursework will yield a different number of hours that either a public or private student is required to complete before the student may work on a client. Finally, for clerical purposes, the word Department is changed to the word department.

The amendment to existing §83.73, relating to student responsibilities, deletes the rule relating to student clothing; and an amendment to §83.72 is simultaneously filed to allow schools to establish rules of operation and conduct, including rules relating to student clothing. The rule also clarifies that students are responsible for compliance with health and safety standards under the rules. Finally, for clerical purposes, the word Department is changed to the word department.

The amendment to existing §83.75 changes the word Department to department for clerical purposes.

The amendment to existing §83.80, relating to fees, re-organizes the fees into application fees and renewal fees. A student-instructor registration fee is deleted; a student permit will be utilized for all students. The fee for retaking an examination is deleted and the provisional license fee is deleted. A $150 fee for risk-based inspections is added for salons, public schools and private schools subject to risk-based inspection. The phrase "licensee transcript" is re-stated as "Verification of license, permit or certificate to other states" with no fee change.

The amendment to existing §83.90, relating to administrative sanctions and penalties, deletes subsection (b) for consistent language throughout the Department's programs. Consumer complaints will continue to be accepted through the Department's website, mail, or fax transmission.

New §§83.100 - 83.114, relating to health and safety standards, re-organizes existing sanitation rules and adds new rules to clarify and explain health and safety standards in accordance with current industry standards. New §83.100 provides health and safety definitions; §83.101 states department-approved disinfectants, §83.102 states general requirements; §83.103 states health and safety standards for hair cutting, styling and treatment services; §83.104 states health and safety standards for facial services; §83.105 states health and safety standards for waxing services; §83.106 states health and safety standards for manicure and pedicure services, including the requirement that non-porous instruments used in manicure and pedicure services are sterilized; §83.107 states health and safety standards for electric drill bits; §83.108 states health and safety standards for foot spas; §83.109 states health and safety standards for wig and hairpiece services; §83.110 states health and safety standards for hair weaving and hair braiding services; §83.111 states health and safety standards relating to blood and body fluids; §83.112 states prohibited products or practices; §83.113 states FDA-related health and safety standards for cosmetology services, including a prohibition on the use of monomeric methyl methacrylate (MMA); and §83.114 states health and safety standards relating to cosmetology establishments generally.

New rule §83.120, relating to curriculum, re-organizes existing curriculum rules and creates a new section relating to curriculum with no substantive change. For clerical purposes, hair weaving is amended to two words instead of one throughout the section.

The rule proposal was published in the Texas Register on December 16, 2005. The comment period closed on January 17, 2006. Forty-three (43) written public comments were received in response to the proposed new rules. Also, a number of oral comments were received in regional meetings conducted by the staff with groups of licensees around the state. In addition, on January 23, 2006, the Advisory Board on Cosmetology met and reviewed the proposed rules and public comments received. The Advisory Board recommended that the Texas Commission of Licensing and Regulation ("Commission") adopt the proposed rules with staff's recommended changes. All public comments received and Advisory Board recommendations are summarized below.

Thirteen comments were received related to hair braiding. There are no proposed rules relating to hair braiding at this time.

A comment from an individual/salon relates to authorizing a cosmetologist's scope of practice to include trimming and styling beards. The scope of practice of cosmetology is defined by statute, which grants authority to cosmetologists to trim and style beards. No proposed rule relates to this topic at this time.

A comment from Houston Community College System relates to requirements of license applicants to show proof of education to be registered as a student. The eligibility to obtain a student permit is prescribed by statute and does not include completed education such as a high school degree, its equivalent, or the passage of an ability to benefit from a training test. Proof of education is required for a license and, thus, must be submitted to obtain a license. No proposed rule relates to this topic at this time.

A comment from Toni & Guy Hairdressing Academy relates to three topics. First, the comment states that the rule relating to school refunds as a percentage of outstanding tuition is confusing. The language of calculating refunds as a percentage of outstanding tuition is prescribed by Texas Occupations Code §1602.459(b). No proposed rule relates to this topic at this time.

Second, the comment addresses the dry mock shampoo in the practical examination. This is not a proposed rule or an existing rule; however, the practice of a dry mock shampoo is temporary and the shampooing of wet hair is planned to resume when PSI administers the examination.

Third, the comment requests the creation of a hairdressing license. License types are prescribed by statute and currently do not include a license specific to only hairdressing.

A comment from an individual relates to several topics. The comment urges that consumers have a responsibility to be healthy and requests the staff to have knowledge of health and safety standards. The comment also urged that 'training' be required for only licensees who have violated the rules, as opposed to cosmetologists who have years of experience and no complaints. To the extent this comment refers to continuing education, continuing education is a requirement for all license renewals. No proposed rule relates to changing continuing education hour requirements at this time.

The comment also urged that a requirement of 'work training' be established before an individual may become licensed. License requirements are prescribed by statute and do not include proof of work experience prior to becoming licensed. No proposed rule relates to this topic.

A comment from an individual relates to many topics relating to disinfecting cosmetology implements. First, the comment requests that the requirement for a 'wet sanitizer' be deleted. A 'wet sanitizer' is not a phrase used in the rules. To the extent a 'wet sanitizer' refers to a wet disinfectant or wet disinfectant soaking container, rule 83.10 defines this to include any closed container that may hold a disinfecting solution for the submersion of implements. Again, there is no requirement for a specific item called a 'wet sanitizer'.

Secondly, the comment requests that the requirement to keep the solution 'mixed up at all times' and 'for an inspector to see' be deleted. There is no requirement that a disinfectant solution 'be mixed up at all times'. However, for the disinfection of implements, rule 83.101 requires a disinfecting solution to be clean and prepared daily or more often if soiled.

Third, the comment disagrees with storing instruments in the 'wet sanitizer' because the item will break down. Under rule 83.102(f), after disinfection and when not in use, implements must be stored in a clean, dry, debris-free container. There is no requirement that items be stored in a 'wet sanitizer' or the wet disinfectant soaking container.

A comment from an individual relates to two topics. First, the comment requests clarification in proposed rule §83.71(f)(1)(D) relating to the type of dryer required. Second, the comment inquires about the requirement to use a clean neck strip. The Department recommended a change to the proposed rules relative to these issues.

A comment relates to the storage of sterilized nail instruments in a container separate for each client. No proposed rule prohibits this practice. Under proposed rule 83.102(f), storage of implements must be in a clean, dry, debris-free container. However, regardless of whether instruments are used on only one client or multiple clients, nail instruments must be cleaned, disinfected, and sterilized prior to each nail service in accordance with the law and rules.

A comment from an individual inquires about who is responsible for the sterilizer, especially relating to independent contractors leasing space in a salon. Under Occupations Code, §1602.408, licensees who perform manicure or pedicure nail services must sterilize nail implements prior to each service and cosmetology establishment licensees must provide a sterilizer as described in rule 83.100(i). No proposed rule specifically identifies whether booth rental licensees' must provide their own sterilizer.

A comment relates to deleting continuing education and the inactive license status. Continuing education and an inactive license status are both authorized by statute.

The comment also recommends deleting the 2 hours in methods of teaching for instructor licensees and the 4 hours in sanitation/sterilization. At this time, there is no rule proposal to change the number of hours or types of courses required for continuing education.

A comment relates to a change in licensing to a 'test for all the new provisions' and refers to 'unnecessary testing.' To the extent this comment may relate to continuing education, these courses do not require a test.

This comment also suggests adding a TB test as a license requirement. No proposed rule relates to this topic.

A comment from AmeriSpa, L.L.C. requests a change in the rules relating to foot spas and pedicure vessels of all types to reflect EPA disinfectant requirements for disinfecting foot spas and to include rule language that reflects EPA's Advisory Notice. The comment suggested that the time of contact for a disinfectant solution be 10 minutes with multiuse implements; that disinfection shall be by complete immersion of nonporous items; and, that a surfactant detergent or an EPA-registered one-step disinfectant should circulate throughout the foot spa for 10 minutes. These suggestions currently exceed industry standards. As such, a rule imposing these requirements would need to be proposed and open for public comment. At this time, staff will continue to review these issues.

Further, the comment states that accountability procedures should be adopted to notify salon clients that the cleaning and disinfecting procedures have been followed; that a notice should be required to inform clients to not shave or wax their legs prior to a pedicure and to not have a pedicure if they have an open wound or wounds on or near their feet; and that a sign should be displayed at salons who have disciplinary action for failing to follow disinfecting procedures. At this time, there are no proposed rules relating to these issues.

One comment from SLS Schools, Inc. addresses numerous different topics. The comment disagrees with the minimum number of weeks prior to completing a program under §83.20. These requirements are statutory and are not the subject of proposed rules.

The comment disagrees with proposed rule §83.21(c), requiring license applicants to complete the written examination before the practical examination. The comment disagrees that schools should have enough equipment for 50 students under §83.23(d) and requests clarification relating to §83.72(o)(11) requiring schools to have 16 styling stations and chairs when there should be equipment for 50 students. At this time, the department believes this requirement is sufficient to instruct 50 students pursuant to Texas Occupations Code §1602.303, as not all students will be using the equipment at the same time.

The comment requests clarification of proposed rule §83.31 relating to how the two-year term for student permits is calculated when a student transfers to another school and whether the two-year term is calculated in total or only by enrollment in one school. The comment requests that in calculating a student withdrawal or termination in the first week under §83.73(d)(4), that the first week should be defined by earned hours, not scheduled clock hours. There is no proposed rule relating to this topic at this time.

The comment inquires why rollers are not required to be disinfected under the proposed rules since 'rods' are required to be disinfected. Rule §83.102(c) states that multi-use implements not addressed in the chapter shall be cleaned and disinfected before use on each client.

The comment disagrees with requiring an autoclave due to the high cost. Proposed rule §83.100(i) and Texas Occupations Code §1602.408 permit sterilization of nail instruments by one of three methods: autoclave, dry heat, or ultraviolet light.

The comment requests a rule (1) to specifically require students to have their rule book with them in school; and (2) to require practical applications of the curriculum for all cosmetology programs. No proposed rules relate to these topics at this time.

The comment agrees with rule §83.73 regarding responsibilities of students.

One comment from an individual addresses two different topics. The comment states that an ultraviolet light does not sterilize instruments and that current disinfection practices are sufficient. The requirement of sterilization of manicuring instruments is statutory, including the use of ultraviolet light pursuant to Texas Occupations Code §1602.408, House Bill 1304, 79th Legislature, 2005.

The comment requests that manicurists/pedicurists should be permitted to perform waxing of toes, tops of feet, legs up to the knee, fingers, and arms up to the elbows. At this time, there are no proposed rules relating to additional curriculum or training for manicurists to perform waxing.

One comment from an individual expressed concern that licensees are subject to a penalty for wearing open-toed shoes and requests a rule making an exception for licensees with a doctor's order. The department requires only 'footwear' under rule §83.70. There is no prohibition against open-toed shoes.

One comment from an individual addresses six topics. The comment requests a rule allowing public school students to take the written examination at 800 hours. The proposed rule under §83.21(b) to allow a person to take an early written examination at 1,000 hours is statutory. This proposed rule reiterates Texas Occupations Code §1603.255, which allows an early written examination to persons seeking an operator or instructor license who have completed at least 1,000 hours of instruction.

The comment requests that rule §83.21(f) state whether a government-issued photo identification includes a high-school identification card. The rule allows any photo identification that is current and valid, is government-issued, and bears a person's photograph, full name, and date of birth. Specific examples of government-issued identification are provided to the student in a 'candidate information bulletin' upon scheduling an examination date.

The comment requests a change to §83.25, relating to counting public school teacher in-service training as the two hours of methods of teaching required for continuing education. No proposed rule relates to this topic at this time.

The comment requests that §83.72(o)(7) and (o)(8) delete the requirement for hood dryers and instead require blow dryers, stating that hood dryers are obsolete. Further, the comment requests that subsection (o)(11) of this rule be amended to include "roll-abouts" as the required styling station. Staff changed the rules as proposed relating to these requirements to clarify the requirement for a dryer and to clarify that a styling station is sufficient so long as it is constructed of a material that is able to be cleaned and disinfected.

The comment requests that duplicate licenses under §83.80 not be required of instructors who work in a salon and teach. The comment advocates for a card that could travel with the cosmetologist and not be displayed. There is no proposed rule relating to this topic at this time.

The comment requests rules to specifically address mentally challenged persons having access to working in the cosmetology profession. No proposed rule relates to this topic at this time.

One comment from Vernon College (Cosmetology Program) states rule comments on many different topics. The comment disagrees with the amendment to §83.21(g) to delete detailed clothing requirements for license examinees and require a smock or professional attire. Staff changed the rules as proposed to clarify examinee clothing requirements.

The comment disagrees with §83.23(a)(4)(B), which requires a public beauty culture school to pay an inspection fee because taxpayers are paying this fee. The department is required to charge fees to cover the cost of administering the program.

The comment requests clarification under §83.24 for whether a fee is required to change to an inactive license status. All fees are listed in §83.80. This section states there is "no charge" to obtain an inactive license status.

The comment relating to §83.50 will be addressed in rule comments for §§83.50-83.54, relating to cosmetology establishment inspections.

The comment disagrees with the amendment to §83.70(i), allowing licensees to wear shorts. The rule provides the minimum; establishments may impose and enforce their own, more stringent, clothing requirements.

The comment requests clarification under §83.72(k) relating to school compensation for services performed by persons enrolled in a refresher course. There is no proposed rule relating to this topic at this time.

The comment disagrees with school equipment of "eight hair dryers with chairs" under §83.72(o)(7) and states that schools should not have hooded dryers if salons do not have this requirement. Staff changed the rules as proposed to clarify the requirement for hair dryers.

The comment emphasizes that under §83.100, the EPA solution is the best disinfectant. The comment disagrees with rule §83.107 prohibiting craft, hardware, and hobby tools as electric drills in nail services. The comment also states that all electric drills are the same and do not need to be purchased from a beauty supplier. The department's review shows that the rules meet industry standards.

One comment from Nail Care Consulting, Pedicure Protection Program addresses the rules relating to health and safety, license examination requirements, and clothing requirements for examinees and licensees. The comment is voluminous, but brief highlights are as follows. The comment disagrees with prohibiting carpet in a salon under rule §83.114 and states that carpet is not an infection risk. The rule requiring non-porous and non-absorbent flooring, except in the reception area, is required for purposes of cleaning and is industry standard.

The comment disagrees with clothing requirements for students and licensees and states clothing does not have anything to do with public health or safety. However, the comment also requests a rule to require certain examinee clothing, such as non-knit clothing and shoes that have no open toes, open heels, or open sides. The comment also requests models wear appropriate street clothes. The comment disagrees with requiring a tuberculocidal disinfectant for shampoo bowls. A tuberculocidal disinfectant is required only for implements that come into contact with blood or body fluids in accordance with proposed rule §83.111.

The comment disagrees with requiring nail instruments to be autoclaved. Rule §83.100(i) authorizes sterilization by one of three methods, one of which is autoclave.

The comment disagrees with the vocabulary 'blood spill' and notes that a blood spill is a medical term defined by specific ounces of blood. The reference to blood spills occurs in §83.101(c)(2). Staff changed the rules as proposed to clarify that alcohol cannot be used to clean and disinfect blood or body fluid.

The comment proposes that foot spas be disinfected by circulating an EPA-registered disinfectant for 10 minutes through the spa unit. Staff changed the rules as proposed relating to permitting an EPA-registered disinfectant to be utilized to flush a foot spa. The suggestion of flushing for 10 minutes exceeds industry standards; however, staff will continue to review this issue.

The comment disagrees with the wording "chemicals and fumes" in §83.114 in requiring exhaust fans and air filtration to exhaust chemicals and fumes away from the public area. The comment suggests "chemical vapors". The department believes the proposed language is sufficiently clear in an air filtration system can only address chemicals in the air, or vapor form.

One comment from an individual requested the repeal of continuing education rules. Texas Occupations Code §1602.354 requires continuing education for all license renewals.

One comment from an individual states that an autoclave is too expensive when other methods are available. Under rule §83.100(i), an autoclave is only one of three currently permitted sterilizers for nail instruments. Dry heat or ultraviolet light are also permitted.

The comment also disagrees with disinfecting shampoo bowls, station chairs and dryers before every client. Staff disagrees with the comment in that disinfecting shampoo bowls before each client is industry standard; however, staff agrees and changed the proposed rules to clarify that chairs and dryers do not need to be disinfected prior to each client.

The remaining comments, relating to the continuing education providers and rule books do not pertain to proposed rules at this time.

One comment from an individual relates to not requiring continuing education. Texas Occupations Code §1602.354 requires continuing education for all license renewals.

The portion of the comment pertaining to inspections is addressed in the rules for §§83.50 - 83.54.

One comment from an individual/salon disagrees with disinfecting chairs before every client under proposed rule §83.103(b). Staff agrees to changed the rules to state that chairs do not need to be disinfected prior to each client.

The comment also addressed continuing education provider regulations, which are not proposed rules at this time.

One comment from an individual disagreed with continuing education on the basis of cost. Texas Occupations Code §1602.354 requires continuing education for all license renewals.

One comment from Franklin Beauty School, Inc. requests that the 'oral' portion of the instructor examination be called the 'practical' examination and requests the deletion of the traditionally required practical examination, as proposed in §83.20(b)(1). The comment states that instructor applicants have already passed the practical examination. The Department agrees with this comment and has deleted the practical examination and renamed the oral examination to be "a practical demonstration of teaching skills".

Four public comments were submitted by individuals and instructors of the Exposito School of Hair Design, Amarillo, Texas, and are identical in substance and form. The comments state the following. The comment disagrees with the licensing requirements for individuals under §83.20 in that (1) the comment disagrees with cosmetology public school students completing 1,000 hours of cosmetology curriculum, as compared to private school students completing 1,500 hours of curriculum; (2) the comment disagrees with applicants for an instructor license completing 250 hours of methods of teaching with two years of verifiable work experience; and (3) disagrees with the qualifications for a registered examination proctor. The public school curriculum of 1,000 hours is prescribed by Texas Occupations Code §1602.254. The license eligibility for applicants for an instructor license are prescribed by Texas Occupations Code §1602.255. At this time, eligibility requirements for registered examination proctors are not a proposed rule, and thus, no changes can be made at this time.

The comment disagrees with proposed rule §83.21(a) that requires a student to submit a license application to be eligible to take the examination, as opposed to the practice of schools submitting a student's application for an examination, on the basis that schools can verify that the student who took the curriculum is the student who is applying for a license (and examination). Rule §83.21(f) requires that to be admitted to an examination, the examinee must present a current, valid government-issued photo identification that includes the applicant's full name and date of birth. The department believes this to be a sufficient form of identification.

The comment disagrees with rule §83.21, relating to examinee clothing. The comment states that the requirement of "professional" attire is too subjective. Staff agrees and changed the rule to clarify examinee clothing requirements.

The comment makes several points about existing rules that are not the subject of proposed rules. The comment disagrees with §83.23, relating to the use of off-campus facilities by beauty culture schools, disagrees with §83.25, relating to continuing education, and disagrees with changing curriculum clock hours. These topics are not the subject of proposed rules at this time.

One comment from an individual presents numerous questions, and some comments to the proposed health and safety rules. One point relates to proposed rule §83.101(a)(3), stating that preparing a disinfectant solution each day is too often. This requirement meets industry standards in proper disinfection procedures.

A second point concerns the requirements of §83.108 and the applicability of the procedures to self-contained foot spas, especially related to the disinfection of the screen and the flushing of the system, when a self-contained unit has no screen or attached plumbing. Staff agrees and changed the rules to clarify the applicability of the rule to self-contained units.

One comment from an individual disagrees with creating a new cosmetology license-type. No rule is proposed at this time relating to this topic.

A second point disagrees with requiring neck strips or towels used between a cape and a client. A third point disagrees with requiring the sanitation of chairs before each client. Staff agrees and changed the rules as proposed relating to neck strips and to clarify that that chairs do not need to be disinfected before each client.

One comment from a chemist addresses several topics, including that the levels of bleach solutions should be clarified, better defined, and used consistently within the rules; that a definition should be added for blood and bodily fluid cleanup and disinfection; that the EPA-registered disinfectant should be referred to as "EPA-registered bactericidal, fungicidal, and virucidal," rather than "EPA-registered bactericidal, fungicidal, or virucidal;" that the definition of cleaning should include the removal of visible debris and residue; that clarifying language be added to §83.101(c)(2) to clarify that alcohol cannot be used to clean and disinfect blood or body fluid; that the second sentence of §83.101(a)(2) should be moved up to paragraph (a)(1); that the word "liquid" should be added before "monomeric methyl methacrylate (MMA)" in §83.113(c), and that the words stating that MMA is an adhesive should be deleted. For these topics, staff agrees with the commenter changed the proposed rules to address these issues.

The commenter also stated several other points. The comment requested a rule to require Material Data Safety Sheets (MSDS). The requirement of MSDS in each establishment is imposed and enforced by federal authorities.

The comment also included a suggestion that spray disinfectants under rule 83.106(f) should be required to have a one-minute contact time. The staff's review shows that this is not required by industry standards; however, staff will continue to review this issue.

The suggestions relating to the whirlpool foot spas include that a disinfectant should be circulated through a whirlpool foot spa after every client; that a high level disinfectant (as compared to a low level disinfectant) should be circulated through the foot spa at the end of each day; and that under subsection (d), the bi-weekly flush of the foot spa should with an EPA hospital disinfectant for at least 10 minutes. These suggestions currently exceed industry standards. As such, a rule imposing these requirements would need to be proposed and open for public comment. At this time, staff will continue to review these issues.

Finally, the comment suggests additional language to make the possession of items under rule §83.113 a violation and suggests additional language to define the scope of cosmetology. Staff believes these topics are sufficiently addressed in rule §83.112 which prohibits certain products/practices and makes possession of certain products a violation. In conjunction with rule §83.112, the scope of cosmetology is defined by Occupations Code, Chapter 1602.

Comments from the regional meetings were recorded by scribes. A summary of these comments are as follows.

Section 83.21. Numerous comments relating to proposed §83.21 disagreed with subsection (g), relating to examinee clothing. Multiple comments requested a definition of "professional attire" and stated that examination proctors would have too much discretion. Some comments wanted to keep the dress code the same. Others disagreed that examinee clothing colors be limited to black and white. Staff agrees and changed the rules as proposed to clarify the examinee clothing requirement. Also, some comments disagreed with passing the written examination before being eligible to take the practical, as proposed under §83.21(c), while other comments agreed with this rule proposal.

Section 83.22. A rule comment requests a rule to require an independent contractor's violations to be reported to the salon owner who leases space to the independent contractor. Another comment requested that a salon owner's responsibility for an independent contractor's violations be clarified. There is no proposed rule relating to these topics at this time.

Section 83.23. A rule comment to subsection (b) requests that the proposed school financial statement requirement to apply to existing schools as well as new schools. Another comment agrees that the financial statement requirement should only be for new schools. There is no proposed rule imposing this requirement on existing schools (for license renewals) and, as such, cannot make this change in scope to the rule as proposed.

Section 83.29. A rule comment to subsection (b) requests clarification of whether an inspection is required if a facial specialty salon moves to another suite. Under §83.29(b), if an establishment relocates, the licensee must apply for a new establishment license and the new establishment must be inspected prior to operation.

Section 83.31. A rule comment to subsection (a)(12) requests a student permit to be effective for three years. Another comment requests that the student permit be able to transfer between schools.

Section 83.70. A comment requests additional clarification under subsection (a) that individuals will be held in violation for non-compliance with the health and safety requirements. Rule §83.70 explicitly states that individual licensees are responsible for compliance with the health and safety standards of the chapter.

Section 83.71. A comment asked for clarification relating to whether equipment requirements are for each employee or for the number of employees at each shift. Another comment asked for a rule to clarify whether a salon may "offer" alcohol to clients. These topics are not proposed for rules at this time; however, staff will continue to review these issues.

Section 83.72. A comment asked for an amendment to subsection (n) to set a minimum requirement for students to wear a smock.

Section 83.73. A comment requested the student clothing rule under subsection (b) not be deleted.

Section 83.100. A comment requests a rule be added to state the difference between an autoclave, dry heat, and ultraviolet light.

Section 83.102. A comment requests that a rule clarify the storage of items after disinfection. Proposed §83.102(f) states that the storage of disinfected implements must be in a clean, dry, debris-free environment and gives numerous examples. Numerous comments to this section also request that a rule be added relating to disinfection of the neck duster. A neck duster is a multiuse item under §83.102(c) and must be disinfected with a disinfectant under §83.101. A comment requested that a rule be added to clarify who receives the health and safety violations as between schools and students. Under rule §83.70 and §83.72, individual licensees and schools are both responsible for compliance with health and safety requirements. Another comment requests an amendment to proposed subsection (i) to remove the trash weekly, every 2-3 days, or as needed. Staff disagrees and believes that the rule states the trash shall be emptied daily is industry standard.

Section 83.103. Numerous comments request a rule relating to the use of a cape and a barrier between the cape and the client. Other comments state that no barrier is needed if a clean cape is required to be used on each client. Staff agrees and changed the proposed rules based on an analysis of all the written and oral comments relating to capes and barriers.

Several comments disagree with the requirement to sanitize or disinfect chairs before each client. Staff agrees and changed the proposed rules to clarify that chairs do not need to be disinfected prior to each client.

A comment requested clarification of whether the disinfectant container must be covered by a lid. Section 83.10 defines a wet disinfectant soaking container as a container with a cover.

Section 83.104. Several comments request that tweezers and comedone extractors be sterilized. Another comment requests a rule that these implements be disinfected with a tuberculocidal disinfectant. At this time, a rule has not been proposed to impose this requirement. Staff will continue to review this issue; however, under rule §83.111, any implement that has come into contact with blood or body fluids must be cleaned and disinfected by a higher level disinfectant as prescribed in §83.111.

One comment to subsection (e) requested that facial sponges be added to the list of items to be disinfected, while another comment states that facial sponges cannot be disinfected. Staff will continue to review this issue.

Section 83.105. A comment requests a rule that requires gloves to be used in waxing services. Another comment disagrees with wearing gloves for extractions.

Section 83.106. A comment requests that a rule be added to state whether the use of a manicure duster is permitted and how to disinfect the duster. A multiuse implement not otherwise addressed in the rules must be disinfected under §83.102(c).

A comment requests that an ultraviolet light not be included as a sterilization method. Ultraviolet light is an approved sterilizer in accordance with Texas Occupations Code §1602.408, created by House Bill 1304, 79th Legislature, 2005.

A comment to subsection (e) disagrees with the rule to discard orangewood sticks after use. Orangewood sticks are single-use items as per industry standard.

A comment to subsection (f) relating to the use of alcohol to disinfect nail implements requests that an EPA-registered disinfectant be permitted. Staff agrees and changed the rule to reflect that any of the department-approved disinfectants may be used.

Section 83.107. A comment requests a rule that drill bits be sterilized. No proposed rule relates to this topic at this time; however, staff will review the issue.

Section 83.108. A comment to subsection (e) requests that the foot spa disinfection record be public and that the client should sign the record for observing disinfection procedure before client service. No proposed rule relates to imposing this requirement.

A comment states that chlorine bleach damages foot spas. Another comment requests clarification of whether a foot spa is defined as "plumbed in" or "portable". Staff agrees and changed the rule to add the use of the EPA-registered bactericidal, fungicidal, and virucidal disinfectant for disinfecting a foot spa and clarified that the foot spa rules apply to both foot spas that have attached plumbing and those that are free-standing.

Section 83.112. A comment to subsection (a)(4) disagrees with the prohibition to use formaldehyde. The use of formaldehyde is below industry standard.

Section 83.114. A comment requests an exception to subsection (b) be made for facial specialty salons to allow commercial grade carpet. Another comment requests a rule to permit the use of rugs. The requirement of floors to be non-porous and non-absorbent is so that they may be easily cleaned.

Another comment disagrees with subsection (a), and states that cracks in the floor are not a health and safety issue. Rule §83.114(a) states that the purpose for cracks, holes, and similar disrepair to be filled in is to create a smooth, washable surface for cleaning.

Another comment requests clarification of whether carpet is permitted in bathrooms. Rule §83.114 states bathrooms are required to have non-porous or non-absorbent flooring that is easily washable.

Proposed rule §83.20(b)(1), requiring instructor applicants to "pass a written, practical, and oral examination required under §83.21" is changed to state that instructor examinees must pass a written examination and practical demonstration of teaching skills required under §83.21. Similarly, under subsections (c) and (e) of §83.21, staff changed the references to the (instructor) oral examination.

Numerous public comments state that the proposed language of "professional attire" is too subjective for enforcement and confusing to applicants. The staff changed §83.21, as proposed, to amend proposed subsection (g), relating to examinee clothing to state "Examinees are required to wear a smock/lab coat with sleeves and closed toe shoes to the practical examination." This recommended change deletes the option of "professional attire," as proposed.

The staff changed §83.29 to delete "school" from the title, as the section relates to cosmetology establishments, which includes schools and salons.

The staff changed §83.31 to delete the proposed rule under subsection (a)(12), proposing that student permits have a two-year term, and to retain subsection (d), proposed for deletion, and amend it to state, "A student permit is valid for the student's duration in school until the student withdraws from school or takes an examination for licensure."

Similarly, staff recommends a change to §83.80 to delete (b)(7), relating to a renewal fee for a student permit.

A public comment inquired about the procedure for students transferring to another school to obtain a new permit. At this time, implementation systems are not fully in place. Staff's change to the rule as proposed retains the current procedure in processing student permits.

The staff changed §83.71 and §83.72 to add a subsection §83.71(e)(8) and a subsection 83.72(o)(22). In both, staff changed the equipment lists for salons and schools by stating, "if providing manicure or pedicure nail services, a department-approved sterilizer."

Numerous public comments were received under proposed rules §83.106, 'Health and Safety Standards-Manicure and Pedicure Services' and §83.100, 'Definitions' concerning who bears responsibility in providing the sterilizer, as required by these proposed rules. Texas Occupations Code §1602.408 provides that the owner or manager of a beauty shop, specialty shop, or beauty culture school is responsible for providing an autoclave or a dry heat, ultraviolet, or other commission-approved sterilizer for use in the shop or school. Pursuant to public comment, §83.71 and §83.72 has been changed to add a sterilizer as an equipment requirement to salon and school responsibilities which clarifies the sterilization requirements under §83.106.

The change to §83.71(f)(1)(D), clarifies that salon equipment must include, "one hand-held hair dryer or hood hair dryer, with or without chair" for each operator. This change is pursuant to public comment to clarify a salon's responsibility to provide a dryer for each operator under the rule.

The staff changed §83.72(o)(7), to state, "eight heat processors or hand-held hair dryers." A public comment requested a clarification of the dryer requirement for schools and requested that this be interpreted to include hand-held hair dryers for consistency with salon requirements. Staff agrees that the dryer requirement under (o)(7) should be clarified this rule to state "eight hood dryers, with or without chairs," but disagrees that schools and salons should not have different equipment requirements, as schools teach a wider variety of services than many salons may offer. In addition to the hood-dryer requirement under subsection (o)(7), schools must also provide "three professional hand held dryers" under proposed §83.72(o)(15).

The staff changed §83.72(o)(11) to state that the required styling stations must be of "non-porous material that can be cleaned and disinfected." This change deletes the requirement that styling stations be "covered with Formica or similar material."

A public comment requested clarification of whether "roll-abouts" may be utilized. Pursuant to the rule, as long as a styling station is constructed of a material that may be cleaned and disinfected, it satisfies the styling station requirement.

The staff changed §83.102(c) to state, "Chairs and dryers do not need to be disinfected prior to use for each client." Numerous public comments stated disagreement that chairs and dryers be disinfected prior to each client. Although §83.102(c) states that multiuse equipment shall be disinfected prior to each client, the intent of the rule was not to include chairs and dryers. Staff changed this rule for clarification based on the public comments.

The staff changed §83.102, as proposed, to add subsection (n) to state, "Haircutting capes and shampoo capes shall be kept clean. A clean (one-use) cape shall be used for each client or a sanitary neck strip or towel shall be used to keep the capes from coming into direct contact with the client's neck." Existing rule §83.100(d)(3), relating to neck strips and capes, is proposed for repeal. Pursuant to public comments, staff agrees that this language should not be repealed and should be retained as a cosmetology health and safety standard. For consistency in rule organization, staff recommends that the rule be relocated from §83.100(d)(3) to §83.102(n), under proposed new 'Health and Safety Standards-General Requirements.'

Public comments also included a request to amend the existing requirement to require only a clean cape to be used on each client and, specifically, to delete the requirement of a barrier between the cape and the client. Staff changed the proposed rule to add a barrier between the client and the cape only when a clean (one-use) neck cape is not utilized.

The staff changed §83.106(c), as proposed, to clarify that manicure and pedicure implements shall be cleaned, disinfected, and sterilized "prior to each service, in accordance with this chapter, regardless of the tool's multiuse for only a single client or for multiple clients." The rule states implements shall be cleaned, disinfected, and sterilized "…before servicing each client…." The change addresses a public comment to clarify that the sterilization is required before each service, regardless of whether the implement is reused for only one client. The comment stated that it is a practice in some shops to keep nail instruments in separately marked containers specific to individual clients. The staff change emphasizes the sterilization requirement as proposed in §83.106, and consistent with Texas Occupations Code §1602.408 and §1603.352, to require sterilization of non-disposable manicure and pedicure instruments prior to performing each nail service.

The staff changed §83.106(f), as proposed, to clarify that disinfection of implements may be via one of the three department-approved disinfectants as prescribed in §83.101. The proposed rule states, in error, that disinfection may be via isopropyl or ethyl alcohol. The staff changed subsection (f) to state that manicure and pedicure implements must be cleaned "…and then disinfected with either an EPA-registered bactericidal, fungicidal, and virucidal disinfectant, or isopropyl alcohol, ethyl alcohol, or a high level chlorine bleach solution in accordance with this chapter." This change results from a public comment, and staff agrees that proposed rule §83.106(f) should be clarified for consistency with proposed rule §83.101.

The staff changed §83.108(a), as proposed, to clarify, pursuant to a public comment, the applicability of the §83.108 to self-contained foot spa units. Staff recommends an amendment to subsection (a) to state, "The cleaning and disinfecting procedures for foot spas in this section shall be followed for units connected to an establishment's plumbing, and, to every extent possible, self-contained units."

The staff changed §83.108(d), as proposed, to clarify the bi-weekly cleaning and disinfection procedures for whirlpool foot spas. Numerous public comments were received stating that an EPA-registered disinfectant is acceptable and/or industry standard for flushing a foot spa system bi-weekly. One comment further stated that chlorine bleach is corrosive to many foot spas, thereby deteriorating the smooth surface. The rule as proposed states only the option of using chlorine bleach. Staff agrees with the public comments, and changed subsection (d) to allow the option of flushing a spa system with an EPA-registered disinfectant with demonstrated bactericidal, fungicidal, and virucidal activity according to the manufacturer's instructions.

Staff changed references to chlorine bleach solutions in the proposed health and safety rules to make those references more consistent and conform to accepted industry standards. This recommendation is based on a comment received from a chemist who works in the beauty product industry and subsequent analysis by the staff. The staff changed the following.

First, the staff changed §83.100(1) to reference all three levels of chlorine bleach solutions that are addressed in the rules: low level disinfection, high level disinfection, and blood and body fluid cleanup and disinfection.

The definition of "low level disinfection (100- 200 ppm)" would be changed to specify "two teaspoons household (5.25%) bleach to one gallon water" (rather than the proposed wording of "one teaspoon (5ml)" to "one liter water").

The definition of "high level disinfection (1,000 ppm)" would be changed to specify "one-third (1/3) cup household (5.25%) bleach to one gallon water" (rather than the proposed wording of "five teaspoons (25ml)" to "one liter water").

A definition of "blood and body fluid cleanup and disinfection (5,000 ppm)" would be added to state "Add one and three-quarters (1 3/4) cups household (5.25%) bleach to one gallon water. Also referred to as a 10% bleach solution."

In §83.101(b)(2), change the bleach solution to "one-third (1/3) cup of 5.25% bleach per gallon of water" (high level disinfection) rather than the proposed language of 3/4 cup per gallon.

In §83.103(c) and (d), clarify that the type of chlorine bleach solution mentioned is "high level disinfection."

In §83.108(c) and (d), specify that the chlorine bleach solution mentioned is "one-third (1/3) cup of 5.25%" bleach to one gallon of water. In §83.109(c) and (d), clarify that the type of chlorine bleach solution mentioned is "high level disinfection."

In §83.111(b) and (c), clarify that the 10% bleach solution mentioned is "one and three quarters cups of 5.25% bleach in one gallon of water."

To clarify all references to household bleach as 5.25% bleach. Proposed rules §83.108(c)(2)(A) and §83.108(d) currently state 5%.

Based on the comments received from a chemist who works in the beauty product industry and subsequent analysis by the staff, the staff clarified all references to EPA-registered disinfectants in the health and safety rules to read "EPA-registered bactericidal, fungicidal, and virucidal," rather than "EPA-registered bactericidal, fungicidal, or virucidal."

Staff added "to remove all visible debris or residue," to the end of the first sentence of the definition of "clean or cleansing" in proposed §83.100(2). This language is suggested by the same commenter. The staff agrees that this language clarifies the purpose of cleaning.

Based on a suggestion from the same commenter, staff moved the second sentence of proposed §83.101(a)(2) up to paragraph (a)(1). As the commenter points out, this language relates more to the cleaning requirement in (a)(1) and so is more appropriately located in that paragraph.

Based on another suggestion from the same commenter and another written comment, staff changed proposed §83.101(c)(2) to read, "Alcohol shall not be used to clean and disinfect blood or body fluid." Staff agrees with the comment and believes that the language is more consistent with the terminology of proposed §83.111, which contains the health and safety standards for blood and body fluids.

Based on another comment from the beauty product chemist, staff added the word "liquid" before "monomeric methyl methacrylate (MMA)" in §83.113(c) and deleting the words "an adhesive" in reference to MMA as "an adhesive banned for use in nail services by the FDA." The reason for these clarifications is that only the liquid form of MMA is banned and referring to MMA as an "adhesive" is not technically correct. The remainder of the sentence is also deleted as duplicative of information in subsection (a).

Based on a barber comment to an identical proposed rule under §82.114(f), the staff changed §83.114(f) to state that a cosmetology establishment shall not prepare food or drink for sale or client consumption. Pre-packaged food or drink may be sold or consumed. To correct a grammatical error, staff changed §83.100(3) to state, "non-porous surfaces" as opposed to the currently proposed language of "nonporous-surfaces".