Adopted Rules Title 16

TITLE 16. ECONOMIC REGULATION

Part 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

Chapter 74. ELEVATORS, ESCALATORS, AND RELATED EQUIPMENT

16 TAC §§74.10, 74.20, 74.25, 74.26, 74.50, 74.55, 74.60, 74.70, 74.75, 74.80, 74.85, 74.100

The Texas Commission of Licensing and Regulation ("Commission") adopts amendments to existing rules at 16 Texas Administrative Code, ("TAC"), Chapter 74, §§74.20, 74.25, and 74.55 regarding the elevators, escalators, and related equipment program as published in the August 10, 2007, issue of the Texas Register (32 TexReg 7854), without changes, and will not be republished.

The Commission also adopts amendments to existing rules at 16 TAC, Chapter 74, §§74.10, 74.50, 74.60, 74.70, 74.75, 74.80, 74.85, and 74.100, and new rule §74.26 with changes from the rules as published in the August 10, 2007, issue of the Texas Register (32 TexReg 4854) and are being republished.

Senate Bill 1729, 80th Legislature amended Health and Safety Code, Chapter 754 to authorize the Commission to adopt recent versions of applicable safety codes, and it authorized the Department to grant variances to the codes for new technological improvements. The Commission adopts amendments to accommodate those statutory changes, and it has made changes to clarify the rules.

Section 74.10 is amended at paragraphs (2) through (4) and (7) to add the correct references to specific versions of the codes and to add a reference to §74.100 where the most recent versions of the codes are adopted. Paragraph (5) is amended to add the correct reference to ASME A17.2-2001 and to add language specifying that the currently published edition is the one to use. Paragraph (10) is amended by adding the word "alteration" to the list of the types of work a contractor performs. Paragraph (11) is amended to add a reference to the ASCE Safety Code. New paragraph (14) is added to include a definition of "Inspector". Old paragraph (16) is deleted to remove the definition of unsafe elevator and the paragraph is replaced with new paragraph (17) to define a reportable condition. This change is made because some inspectors have been hesitant to label an elevator as unsafe. The purpose of the definition is not to label elevators but to define the types of things that must be reported to the Department. New paragraph (18) is added to define the term "New Technology Variance" as provided in Senate Bill 1729.

Section 74.20 is amended at subsection (d) to change the word "determined" to "required".

Section 74.25 is amended by deleting subsection (d) which will become new §74.26 with one addition. Section 74.25 will now provide contractor registration requirements while §74.26 will provide reporting requirements for contractors.

New §74.26(a)(3) now includes the requirement that quarterly reports only include jobs not previously reported. New subsection (b) provides that contractors are not required to file reports concerning certain exempt equipment. New subsection (c) requires contractors to report to the building owner and the Department any reportable condition they encounter.

Section 74.50(a)(2) is amended by deleting the phrase, "in a building", to eliminate unneeded language. Subsection (a)(3) is amended to replace the phrase, "have been corrected or are under contract to be corrected" with language requiring the owner to verify that violations cited in an inspection report have been addressed in compliance with §74.70(a)(3). Subsection (b) is amended by capitalizing the word "Delay". New subsection (f) is added to require that owners notify the Department when needed corrections that were granted a delay by the Department have been made.

Section 74.55 is amended at subsection (a) to require inspectors to provide a copy of the inspection form to the Department and the building owner within ten calendar days of the inspection, and a reference to providing notice when an inspector finds equipment without a decal has been deleted, but is now included in subsection (b). Subsection (b) requires reports of equipment found without a decal to be made within 72 hours of the discovery. Old subsection (b), now subsection (c) is amended to change the reference to "unsafe" to "reportable condition" to comply with the definition change described above, and the report may now be made by e-mail, fax letter or telephone. Old subsection (c) is deleted since the requirement to provide a report to the building owner is now included in subsection (a).

Section 74.60 is amended at subsection (a) to use the correct citation to the codes and to capitalize the word "department" and to add the term "alter" in two places the list of functions performed under contract. The same addition has been made to subsections (b), and (c) and the references to the codes have been changed in subsection (c). Subsection (c) is also amended to change the word "the" to "these" that appears before the word "rules". Subsection (d) is amended by deleting the last sentence of the subsection; it is moved to new subsection (g). Subsection (e)(1) is amended by changing the word "the" that appears before "rules" to "these". Subsection (e)(6) is amended by deleting the phrase "or complete an equipment contract" and the word "registrant" is replaced with the term "inspector registrant". Subsection (e)(7) is amended by deleting the word "the" that appears before the word "obtaining", and changing the word "of" to "for" that appears before "the building". New subsection (f) is added to prohibit an inspector from inspecting equipment if the inspector's employer has a contract to install, maintain, repair, alter, or replace the equipment. New subsection (g) is added to include language deleted from subsection (d) above.

Section 74.70(a) is amended to more clearly state the responsibilities of a building owner, and to include items deleted elsewhere in the rules. The effect is that their responsibilities are stated in one location rather than being sprinkled throughout the rules. Subsection (b) is amended to more clearly define the inspection interval and to reference the adopted codes as set out in §74.100. Subsection (c) is amended to reference the adopted codes as set out in §74.100. Subsection (d) is amended to replace the word "their" appearing before the word "representative" with the words "the owner's", and to add a provision regarding the circumstances under which equipment suffering an accident may be returned to service. Subsection (e) is amended to reference the adopted codes as set out in §74.100 and to delete language defining who may perform tests since those requirements are set out in the codes. Subsection (f) is amended to change the references to unsafe elevators to elevators having a reportable condition, to change the notification requirement from 48 hours to 24 hours, and to add a requirement that such equipment be reinspected and recertified, and to require the owner to verify that the reportable condition has been corrected before the equipment is returned to service. Subsection (g) is amended to reference the adopted codes as set out in §74.100 and to require that new installations be free of violations of the codes unless the violation is the subject of a Delay, a Waiver, or a New Technology Variance. Subsection (h), which deals with altered equipment has been amended in the same fashion as subsection (g). Subsection (i) has been amended to require that equipment must be tested to determine compliance with adopted codes. Subsection (k)(2) has been amended to make it clear that the section applies to escalators. Subsection (m) has been amended to more clearly set the conditions under which an owner must have equipment reinspected and recertified. There are no substantive changes.

Section 74.75(a)(2) is amended to change the reference from ASME A17.2-2001 to the currently published edition of ASME A17.2. Subsection (a)(7) is deleted as its provisions are now in §74.70. Subsection (b)(4) is amended to make it clear that the official equipment inspection form is not to be used to report inspection results of elevators in single-family dwellings, federal facilities or those that are construction use only. Subsection (c)(1) is amended in its several subsections to clarify and correct the procedure for application of test tags and seals. Subsection (c)(2)(D) is amended to clarify the process for replacement of lost or destroyed decals.

Section 74.80(f) is amended by capitalizing the word "department" where it appears in the section in four places. New subsection (h) is added to provide a fee for an application for a New Technology Variance. New subsection (i) is added to provide a fee for appealing denial of a variance application.

Section 74.85(a) is amended to correct language and to more clearly state the Department's responsibilities. Subsections (a)(2)(A) and (C) are amended to state the Department's duty to review reports and applications that are received rather than having that duty for submitted by a building owner. Subsection (c), which established continuing education requirements for QEI certified inspector, has been deleted since QEI inspectors must have continuing education administered by the QEI certifying entity in order to maintain QEI inspector status. New subsection (c) is added to set out the procedure for Department review of New Technology Variance requests and appeals of application denials. New subsection (e) is added to provide that the Department may require inspectors to attend training seminars on law and rules. New subsection (f) is added to provide that such seminars where attendance by inspectors is not mandatory may be conducted.

Section 74.100(a) is amended to add "repair, replacement and testing" to the list of operations covered by the adopted codes and to delete the word "new" and the phrase "installed or altered on or after September 1, 2003", and to change the reference to ASME A17.1-2000 to ASME A17.1-2007/CSA B44-07. Old subsection (b) is deleted and a new subsection (b) is added with a list of sections in ASME A17.1-2007/CSA B44-07 that are not adopted by the Commission. Subsection (c) is added to establish the dates that the adopted codes will become effective in Texas.

The Department drafted and distributed the proposed amendments and new rule to persons internal and external to the agency. The proposal was published in the Texas Register on August 10, 2007. The comment period closed on October 1, 2007. Ten individuals and two organizations filed comments suggesting changes to the proposed rules as published and are discussed below.

Eight of the individuals and one organization, The University of Texas Health Science Center at San Antonio (UTHSCSA), objected to proposed §74.60(e)(11) which would prohibit registered inspectors from performing inspections when the inspector and the person performing the tests are employed by the same company, and asked that the rule be eliminated. There were no comments in support of the rule. Six of the individual commenters noted that no conflict of interest exists when the same company employs the inspector and the test performer. Seven individuals and UTHSCSA noted that implementation of the proposed rule would have a strong negative impact on business operations and three of them were concerned that its implementation would result in loss of their jobs. Three of them expressed concern that the rule would cause scheduling nightmares for their employers. UTHSCSA asked that the rule be amended to exclude institutions of higher education that employ, "a licensed qualified elevator maintenance staff." Proposed §74.60(e)(11) is deleted based on the nature of comments received.

UTHSCSA also requested that §74.60(f) be amended to add the same exemption it proposed for §74.60(e)(11). Its concern is that hiring outside inspectors will increase its costs. That rule only prohibits inspectors from performing inspections on equipment if the inspector's employer also has a contract to install, maintain, etc. that equipment. UTHSCSA owns its elevators and its qualified inspectors are not prohibited by the rule from inspecting those elevators; there is no maintenance, etc. contract involved. The advisory board recommended that the word, "tests" be deleted. That change is made. No other change is made in response to the comment.

Another individual commenter addressed five provisions of the proposed rules. The first is a suggestion to add the words "inspection" and "testing" to the definition of "contractor" found at §74.10(10). The term "contractor" is defined in Chapter 754, Health and Safety Code at §754.011(12) and those words are not included in the definition. The statutory list of functions a contractor performs is repeated in the rule and the Commission may not expand that list by rule. No change is made.

The second rule provision is §74.60(e)(11) and the commenter's concerns have been addressed in the paragraph above. The commenter also suggested if the rule is not deleted that it be amended to soften the prohibition.

The third provision addressed is §74.60(f) with a proposal that the term "may not" be replaced with "shall not". The commenter is concerned that the prohibition in the section may not be mandatory as it is worded. The code construction statute at Government Code §§311.016 provides that the term "may not" is synonymous with the term "shall not". No change is made.

The fourth rule provision addressed is the deletion of six sections of ASME A17.1-2007/CSA-B44-07 that is accomplished by adding paragraphs (2), (3), (4), (5), (6), and (7) to §74.100(b). The deleted requirements address testing emergency or standby power for elevators, even though the code does not require such power for elevators. Those same testing requirements are set out in building codes typically enforced by municipalities or other local governments. The result is that building owners often are required to bear the expense of testing under a building code and then bear an additional expense to test the same functions under ASME A17.1. No change is made.

The fifth provision is a suggestion to eliminate the word "rule" when it refers to code requirements to avoid confusion. The commenter's point is well taken and, accordingly §74.75(b)(3) is amended to read: "(3) The inspector must list all ASME Code violations by code number and code edition for each unit inspected, and include a written description of the violation on the Department Form. If the ASME Code refers to another code, the inspector must list both code numbers and include a written description of the violation."

Another commenter suggested five amendments to the published rules. The first is a suggestion that a new paragraph (5) be added to §74.25(d) to require contractors to report to the Department when the contractor removes a control panel with a decal affixed. Since no change related to this comment was proposed, the Commission may not include the suggested amendment for the first time in an adopted rule. No change is made.

The second is a suggestion to amend §74.70(a)(3)(C) to change the requirement that an approved waiver or delay for any violation not corrected within 60 days must have been obtained, to require that an application for a waiver or delay be submitted. Health and Safety Code §754.016(c)(1) requires that inspected equipment must comply with the applicable codes except for waivers or delays that have been granted and noted on the certificate. No change is made.

The third is to add subsection (a)(1)(D) to permit an approved waiver or delay from a previous inspection. Since subparagraph (C) discussed above makes no distinction regarding the date a required delay or waiver was granted, the suggested subsection is not needed. No change is made.

The fourth is a suggestion that §74.75(a)(3) be amended to replace the deleted word "agent" since the owner is often not available at a building. The definition of "owner" in §74.10 includes the owner's agent and the word is not needed here. No change is made. The commenter also suggested that the rule be amended to require the inspector to report building owner contact information. Section 74.75(b)(2) requires the inspector to file a completed form which includes spaces for building owner information. No change is made.

The fifth suggestion addressed §74.100 though the commenter did not suggest any specific language changes he did inquire whether the portion adopting A17.3-2002 could be amended to exclude Section 1.5. He also inquired whether the statutory changes in Health and Safety Code §754.014 create a conflict because of the effective dates of ASME A17.1/CSA B44-07. No conflict has been created by the amendments to the statute. The Commission may not except any part of ASME A17.3-2002 since it was not included in the authority granted by the legislature in SB 1729, 80th Legislature to revise versions of other codes. No change is made.

Another commenter proposed twenty-six changes to the published rules. The first is to amend §74.10(4) to add "/CSA-B44" to the reference to ASME A17.1. The commenter correctly notes that the cite is not complete and §74.10(4) will be amended to read: "(4) ASME A17.1--The ASME A17.1/CSA-B44-07 - "Safety Code for Elevators and Escalators" as adopted in §74.100".

The second is to amend §74.60(10) to add the word "testing" to the definition of contractor. The term "contractor" is defined in Chapter 754, Health and Safety Code at §754.011(12) and that word is not included in the definition. The statutory list of functions a contractor performs is repeated in the rule and the Commission may not expand that list by rule. No change is made.

The third is to amend §74.10(18) to delete the words "Deferral of" from the definition of Variance, New Technology. Senate Bill 1729, 80th Legislature, authorizes the Department to establish procedures to grant variances for new technology that is not yet included in the adopted standards if the applicant can demonstrate that the new technology is equivalent to or superior to the standards adopted by the Commission. The concept the department has developed for issuance of variances is an extension of a concept that already exists in the statute. Deferral of immediate compliance with some standards is allowed when the owner has entered into a contract to remedy a non-compliant situation. For new technology variances, deferral of immediate compliance is an approach that accommodates new technology while providing a mechanism for returning to the status that existed before the grant of a variance if, after use, the new technology is found to present a safety risk. Deletion of the reference to deferral in the definition would render unworkable the approach set out in the rules for new technology. The Elevator Advisory Board also recommended deletion of the concept of deferral. See the Advisory Board Recommendation section below for a discussion of its position. No change is made.

Two changes are made to this proposed rule in response to other comments, set out below, regarding the nature of variances. Commenters noted that logically related concepts should be treated as one variance rather than requiring each piece of equipment to have a variance. This point is well taken and §74.10(18) is changed to include that concept. Further, the Advisory Board recommended a change to §74.80 to address situations where variances are requested for more than one system. The point is well taken, but the change should not be in a fee rule. Accordingly, §74.10(18) has been amended to read: "(18) Variance, New Technology--Deferral of compliance with a requirement of the applicable ASME/ASCE Safety Codes to allow the installation of new technology if the new component, system, sub-system, function or device is found to be equivalent or superior to the standards adopted in §74.100. A new technology variance, once granted, may be applied to all like equipment installed in the state and a separate variance is not required for each installation. A variance applies to only one component, system, sub-system, function, or device. For example, one seeking a variance for a door system, a control system, and a suspension system would be required to file three separate variance applications."

The fourth is to add a new subsection (b) to §74.26 to make it clear that contractors are not required to report to the Department operations on equipment in certain exempted locations. The point is well taken and §74.26(b) is changed to read, "(b) Contractors are not required to file a report with the Department regarding the items listed in subsection (a) above for equipment located in a single-family dwelling, for construction-use only elevators or equipment in a building owned and operated by the federal government." The following subsections are relettered.

The fifth is a suggestion to add to §74.26, old (b), the phrase, "in writing" and to strike the reference to reporting by telephone. The commenter was concerned that a telephone report cannot be memorialized. The Department is able to record telephone calls. No change is made.

The sixth is a suggestion to add to §74.50(a)(3) the phrase, "or are under contract to be corrected." That subsection requires that the report indicate that the violations cited are in compliance with §74.70(a)(3). One of the ways to be in compliance is to have a contract to correct the violation. No change is made.

The seventh is a suggestion to amend §74.50(f) to add the phrase "by e-mail, fax, letter" to the requirement to report in writing that a violation that was the subject of a delay has been corrected. The commenter offered this to make it consistent with other reporting requirements in the rules. In this case, unlike others, a telephone report is not allowed. No change is made.

The eighth is a suggestion that §74.55(a) should have a reference to equipment that is found without a decal since the commenter notes that uninspected elevators still exist. The requirement to report to the department equipment that is found without a decal, and thus is uninspected, is set out in §74.55(b). No change is made.

The ninth is to amend §74.55(b) to delete a reference to reporting by telephone and to add a requirement that the report be in writing. The commenter was concerned that a telephone report cannot be memorialized. The Department is able to record telephone calls. No change is made.

The tenth is a suggestion to amend §74.60(a) to refer to ASME and ASCE codes differently. Both this commenter and the National Elevator Industry, Inc., (NEII) whose comments are discussed below, made this suggestion, which is well taken. Accordingly, §74.60(a) is changed to read: "(a) Competency. The registrant shall be knowledgeable of and adhere to the Act, these rules, the ASME Safety Codes or ASCE Standards as adopted in §74.100, and all procedures established by the Department for equipment inspections or performance of a contract to install, alter, repair, or maintain equipment. It is the obligation of the registrant to exercise reasonable judgment and skill in the performance of equipment inspections or performance of a contract to install, repair, or maintain equipment."

The eleventh is a suggestion to amend §74.60(c) in the same fashion as subsection (a) above. The same change is made for that subsection.

The twelfth comment is a statement of support for §74.60(f) as published. No change is made in response to this comment although another change discussed below is made.

The thirteenth is a suggestion to amend §74.70(a)(3)(B) to delete the requirement that all work under a contract to correct violations be completed before the next inspection due date and add a requirement that the work be completed within 90 days of the inspection. The commenter feels that up to one year to correct violations is too long. When equipment presents a reportable condition, and thus is unsafe for use by the public, it must placed out of service and may not be used until the condition has been repaired and the equipment has been inspected. Violations that may be dealt with by use of a contract to repair tend to be technical or of the sort that do not pose a safety hazard. Allowing the owner to have that sort of violation remedied before the next inspection facilitates budget planning and non-emergency scheduling of repairs thereby reducing costs to owners without endangering the public. No change is made.

The fourteenth is a suggestion that §74.70(d) be amended to clarify the language and to remove gender specific language. The same comment was made by NEII. The rule is amended to read: "(d) The building owner or the owner's representative must report all accidents, as defined in Texas Health and Safety Code, §754.011, involving equipment to the Department, using a Department approved form, within 72 hours of the accident. If the accident results in serious bodily injury or a fatality, the equipment shall be removed from service and shall not be moved (except as necessary to extricate an injured party or effect a life-saving rescue) or returned to service until a representative of the Department completes an investigation and issues an approval to return the unit to service."

The fifteenth is a suggestion to amend §74.70(e) to add the words, "codes and" before the word, "standards". The change as proposed is made.

The sixteenth is a suggestion to amend §74.70(g) to add the words, "of the codes and standards" after the word, "requirements". The change as proposed is made.

The seventeenth is a suggestion to amend §74.70(h) as in (g) above. The change as proposed is made.

The eighteenth is a suggestion to amend §74.70(i) as in (g) above. The change as proposed is made.

The nineteenth is a suggestion that §74.70(n) be amended to delete the requirement that Waivers, Delays and Variances be posted in the machine room and to make them part of the maintenance control plan that must be readily available to maintenance personnel. Waivers, delays, and variances should be available to elevator maintenance personnel in the machine room without their having to seek out building personnel to gain access to a maintenance control plan, which is not required to be kept in the machine room. No change is made.

The twentieth is a suggestion that §74.75(a)(1) be amended in the same fashion as §74.60(a) above. The same change is made for this subsection.

The twenty-first is to make the same change to §74.75(a)(2) that was suggested for subsection (a)(1) above. The same change is made for this subsection.

The twenty-second is to delete the word "safety" from §74.75(a)(5). That change is made.

The twenty-third is to amend §74.75(c)(1)(F) to the same change as in §74.75(a)(1) above. That change is made.

The twenty-fourth, twenty-fifth, and twenty-sixth is to change various existing fees set out in §74.80. There were no fee changes proposed in the rule. To add such changes at this time would be to exceed the scope of the notice affected by the publication of the proposed changes. No changes are made in response to these comments.

The twenty-seventh is a suggestion to amend §74.80(h) to change the proposed fee from $2500 to $200, and to add a provision that when a variance is granted for a given type of new technology it will apply to all like equipment in the state. The proposed fee for new technology applications is intended to cover the costs to the Department associated with reviewing the application and accompanying literature, which will be considerable, seeking out materials from experts in the field to corroborate and differentiate the positions set out in the presented literature, conducting stake holder focus groups when necessary, possibly obtaining expert advice to assist the Department in assessing the merits of an application, and performing the myriad administrative tasks associated with the process. After actual experience processing such applications, the Department will review the costs of administering such applications and will make any adjustments needed. The Department is charged through the Chapter 51, Occupations Code with assuring that the fees charged for each of its programs are set to cover costs of the program. The Department has a history of reducing its fees when an audit of a program's costs and revenues indicates that fees are generating more revenue than required. No change to the proposed fee is made. The second proposal under this comment is one that has been addressed in responses to §74.10(18) above, and the change has been made.

The twenty-eighth is a suggestion that §74.85(c) be amended to provide that new technology applications are needed only for items not included in ASME A17.7/CSA B44-07. The commenter notes that items set out in that code have already been reviewed by experts thereby saving the Department from having to assess applications. Yet, there remains under the commenter's proposal the strong likelihood that a variance application for technology not included in the code will be made and the rule proposed will provide no guidance for processing it. No change is made.

The twenty-ninth is a suggestion that §74.85(c)(1)(A-E), and (c)(2) be deleted. The rationale is that if the new technology meets the provisions of the code recommended by the commenter the application should be granted. Under the circumstances described, there would be no need for an application process; the adopted code already provides for it. As discussed above, new technology applications under the commenter's proposal are probable. Yet the rule will provide no guidance. No change is made.

The thirtieth is a suggestion that §74.85(c)(3) be amended to delete the provision requiring the Department to provide an itemization of specific variances to code provisions that are granted. If the two recommendations above were followed, this one would be acceptable. Since they are not, this section should remain in order clearly to establish the scope of variances granted. No change is made.

The thirty-first is a suggestion that §74.100(a) be amended to add ASME A17.7/CSA B44-07 to the list of adopted codes. Staff does not recommend that this code be adopted at this time. No change is made.

The thirty-second is a suggestion to delete from §74.100(b)(1) a provision deleting from an adopted code references to ASME A17.7/CSA B44-07 and the requirements of 1.2.1 (c) of the adopted code. If the section remains in the adopted code, ASME A17.7/CSA B44-07 will have been adopted through the back door so to speak. No change is made.

NHII proposed all of the items discussed below. The first is to add a definition of "Variance Application" to §74.10. The term "variance application" does not require a definition. To the extent that the proposed rule would have substantive effect such as including in the application a recommendation of the Advisory Board, those matters can be addressed in the substantive rules addressing new technology variances. No change is made.

The next suggestion is to amend §74.10(18) to amend the definition of "Variance, New Technology" in several ways. The first is to change "Variance, New Technology" to "Variance". The commenter argues that the variance procedure authorized by statute should not be limited to new technology. The statute, however, at Health and Safety Code, §754.014(m) provides that variances may be granted, ". . . to allow the installation of new technology if the new component, system, subsystem, function, or device is equivalent or superior to the standards adopted by the Commission." The variance process is available only for new technology.

The second is to delete from the definition the concept of deferral. Senate Bill 1729, 80th Legislature, authorizes the Department to establish procedures to grant variances for new technology that is not yet included in the adopted standards if the applicant can demonstrate that the new technology is equivalent to or superior to the standards adopted by the Commission. The concept the Department has developed for issuance of variances is an extension of a concept that already exists in the statute. Deferral of immediate compliance with some standards is allowed when the owner has entered into a contract to remedy a non-compliant situation. For new technology variances, deferral of immediate compliance is an approach that accommodates new technology while providing a mechanism for returning to the status that existed before the grant of a variance if the new technology after use is found to present a safety risk. Deletion of the reference to deferral in the definition would render unworkable the approach set out in the rules for new technology. No change is proposed.

The commenter also proposed that a variance be a modification of existing code. Since the legislature provided the Commission with authority to grant variances for new technology, a limited form of modification of codes, the Commission may not expand that authority to include modifications for any reason. No change is made.

The next suggestion is to amend §74.10(19) to delete the phrase "Deferral of compliance with" and have it read, "Waiver of a requirement. . ." The response to the proposed deletion of references to "deferral" discussed above in connection with §74.10(18) is applicable here. The commenter also suggested that the issuance and enforcement of waivers should be discontinued. The statute authorizes the grant of waivers in some circumstances and requires them in others. Health and Safety Code, §754.014(g) and (h) provide the authority and requirement, respectively, for waivers. No changes are made.

The next suggestion is to amend §74.80(h) to reduce the fee for a waiver application to a range of $50 to $175, to allow one variance to apply to all like equipment, and to provide for an appeal of a variance denial. The proposed fee for new technology applications is intended to cover the costs to the Department associated with reviewing the application and accompanying literature, which will be considerable, seeking out materials from experts in the field to corroborate and differentiate the positions set out in the presented literature, conducting stake holder focus groups when necessary, possibly obtaining expert advice to assist the Department in assessing the merits of an application, and performing the myriad administrative tasks associated with the process. After actual experience processing such applications, the Department will review the costs of administering such applications and will make any adjustments needed. The Department is charged through the Appropriations Act with assuring that the fees charged for each of its programs are set to cover costs of the program. The Department has a history of reducing its fees when an audit of a program's costs and revenues indicates that fees are generating more revenue than required. No change to the proposed fee is made.

The commenter noted that logically related concepts should be treated as one variance rather than requiring each piece of equipment to have a variance. This point is well taken and the Commission has included the change to address this concern, but not in §74.80. Rather, §74.10(18) is amended to add this language: A new technology variance, once granted, may be applied to all like equipment installed in the state and a separate variance is not required for each installation.

The commenter's request for an appeals fee is also well taken and §74.80 is changed to add an appeals fee. In addition, §74.85 is changed to establish the right to and the procedure for an appeal. Proposed language for the appeals process will be set out below in the response to the next suggestion. In addition, §74.80(h) is amended to remove language that indicates that a variance will apply to only one piece of equipment. Staff proposes that §74.80(h) and new (i) read as follows: "(h) The fee for a Variance - New Technology application is $2,500."; and "(i) The fee to file an appeal of a denial of an application for a Variance - New Technology is $200."

The next suggestion is to amend §74.85(c) in a number of ways. The commenter asked that references to new technology be eliminated. See response to proposed changes to §74.10(18) above. Further, the commenter proposed that the Elevator Advisory Board be required to participate in an application process upon request of the Commission, the Department or the applicant. The duties of the board as set out in statute are to advise the Commission on four enumerated subjects and any matter considered relevant by the Commission. The Commission chooses to exercise that fifth matter on a case-by-case basis rather than imposing a requirement by rule. The commenter also proposed that the variance process be set out in a separate rule rather than being included in a subsection of a rule setting out the Department's responsibilities. No changes are made in response to those comments.

Section 74.85 is changed to add paragraph (4)(C) to read as follows:

(4) Appeal of Variance Denial.

(A) A denial of a Variance Application may be appealed to the Executive Director in writing within thirty (30) calendar days from issuance, upon payment of the applicable appeal fee. Supporting documentation such as the Variance Application and all documentation filed to support the application may be submitted for consideration.

(B) A denial of a Variance Appeal by the Executive Director may be appealed to the Texas Commission of Licensing and Regulation in writing within ten (10) calendar days of notification of the Executive Director's decision. Supporting documentation such as the Variance Application and all documentation filed to support the application may be submitted for consideration. The appeal will be considered at the next available scheduled meeting of the Commission.

(D) The Executive Director's decision regarding the Variance Application is final and binding on the applicant and Department."

NEII also made twenty-six other comments about the rules.

The first is that §74.10 should include definitions of "ASCE" and "ASCE 21". Section 74.10(3) is changed to read as follows:

(3) Code Providers

(A) ASCE--American Society of Civil Engineers;

(B) ASCE 21--Automated People Mover Standards; and

The second is to amend §74.10(2) to delete the new proposed language to make it clear that repairs and replacements made as part of an alteration is to be treated as such. The commenter notes the adopted code clearly defines alteration. Nonetheless, there has been some confusion in the past on this point. No change is made.

The third is that §74.10(4) be amended to properly refer to the code. That change is made.

The fourth is that §74.10(11) be amended to change "ASME/ASCE" to "ASME Safety Codes or ASCE Standards". That change is made.

The fifth is to amend §74.10(14) to include in the definition of inspector that an inspector must be QEI certified. The statute already provides that requirement. No change is made.

The sixth and seventh is to amend §74.10(16) to keep the language of the current rule rather than using the proposed rule. The rule as published was changed to remove the definition of unsafe elevator and to add a definition using the term, "reportable condition". This change was proposed because some inspectors have been hesitant to label an elevator as unsafe. The purpose of the definition is not to label elevators but to define the types of things that must be reported to the Department. No change is made.

The eighth is to amend §74.50(a)(3) to more accurately refer to the codes as discussed above. That change is made.

The ninth is to amend §74.50(f) to replace the concept of delay with the concept of variance. The statute at Health and Safety Code §754.014(e) and (f) require the Department to grant delays. No change is recommended. Also, the commenter suggested that the requirement that the Department be notified in writing when the violation giving rise to the need for the delay has been corrected be changed to notification by e-mail, fax or telephone to make it consistent with other notice provisions. This notice requirement is different because delays are granted and tracked differently by the Department. No change is made.

The tenth is to amend §74.55(c) to remove the term "with a reportable condition" and replace it with "to be unsafe". See the response to six and seven above. No change is made.

The eleventh is to amend §74.60(a) to change the reference to the codes as described above. The change is made.

The twelfth is to amend §74.60(c) to change the code references. The change is made.

The thirteenth is a five part suggestion to amend §74.70(a). First to amend paragraph (2) to remove the term "reportable condition". See the response to six and seven above. No change is made. Second is to amend paragraph (3) to require someone to apprise the owner of violations cited in the inspection report. The statute at Health and Safety Code §754.019 requires an owner to obtain an inspection and to obtain an inspection report. The rule simply requires the owner to address all violations by having g them repaired or having a contract to repair them. No change is made. Third is to amend paragraph (3)(A) to add language allowing an owner to notify the Department when a violation cannot be corrected within 60 days. The choices in the statute are to have the violation corrected or to have a contract to have it corrected. The allowance for a contract provides relief when scheduling or budget issues preclude immediate repair. No change is made. Fourth is to drop the provision allowing a contract as provided by Health and Safety Code §754.019(b)(2). No change is made. Fifth is to renumber paragraph (3)(C) as subsection (a)(4). No change is made.

The fourteenth is to amend §74.70(b) to add language to require equipment to be in compliance with the standards in place at the time of installation or alteration. The language of ASME A17.1/CSA B44-07 already addresses this concern since it provides that the provisions of the code in effect at the time of installation or alteration apply to equipment under consideration. No change is made.

The fifteenth is to amend §74.70(c) to remove the reference to standards adopted in §74.100 and refer to applicable codes. See response to fourteen above. No change is made.

The sixteenth is to amend §74.70(d) to remove a gender specific reference. The rule is changed to read: "(d) The building owner or the owner's representative must report all accidents, as defined in Texas Health and Safety Code, §754.011, involving equipment to the Department, using a Department approved form, within 72 hours of the accident. If the accident results in serious bodily injury or a fatality, the equipment shall be removed from service and shall not be moved (except as necessary to extricate an injured party or effect a life-saving rescue) or returned to service until a representative of the Department completes an investigation and issues an approval to return the unit to service."

The seventeenth is to amend §74.70(e) to remove the reference to standards adopted in §74.100 and refer to applicable codes See the response to fourteen above. No change is made.

The eighteenth is to amend §74.70(f) to remove references to "reportable Condition". See the response to six and seven. No change is made.

The nineteenth is to amend §74.70(g) to remove references to "waiver", "delay", and "new technology". See the first three responses to this commenter and the response to number nine above.

The twentieth is to amend §74.70(h) to remove references to "waiver", "delay", and "new technology". See the first three responses to this commenter and the response to number nine above.

The twenty-first is to amend §74.70(m) to remove references to "reportable condition". See the response to six and seven. The commenter also suggested the deletion of paragraph (3). That paragraph was added in an earlier version of rule amendments to deal with the perception that items in a cab such as wall panels and flooring could be replaced without an inspection being performed. Such changes can radically alter the weight of a cab and cause it to exceed design parameter. No change is made.

The twenty-second is to amend §74.70(n) to remove references to "waiver" and "delay". See the response to nineteen above.

The twenty-third is to amend §74.80(c) to remove "waiver" and "delay". See response to nineteen above. The commenter also suggested that "or per model elevator" be added to cause waiver and delay fees to a class of equipment rather than to each piece of equipment. The cost to review and grant requests for waivers and delays is incurred on a per piece of equipment basis. No change is made. The commenter also suggested that the references to the codes be changed as discussed above. That change is made.

The twenty-fourth is to amend §74.100(a) change the reference to the codes as discussed above. The change is made.

The twenty-fifth is to delete §74.100(b)(1) which deletes from ASME A17.1/CSA B44-07 section 1.2.1 (c). If the section remains in the adopted code, ASME A17.7/CSA B44-07 will have been adopted through the back door so to speak. No change is made.

The twenty-sixth is to amend §74.100(e)(3) to provide an effective date. That code was adopted in the statute and the Commission does not have authority to adopt any version printed since the one described in statute. No change is made. The commenter also suggested adding a new subsection to provide by rule an effective date for ASCE 21. As with A17.3, the Commission has no authority to adopt versions changed since the date the legislature adopted it. No change is made.

The Elevator Advisory Board met on November 27, 2007 to review and discuss the public comments and staff recommendations regarding those comments. The board recommended eleven changes to the changes that were proposed by staff in response to the comments set out above.

The first is to change the definition of Variance, New Technology at §74.10(18) to replace the concept of deferral of compliance with the concept of an alternative method of compliance. The board also recommended that the phrase, "for an indefinite period of time" be inserted after the word, "technology". That phrase was originally proposed to make it clear that a deferral had no time period associated with it.

The concept the department has developed for issuance of variances is an extension of a concept that already exists in the statute. Deferral of immediate compliance with some standards is allowed when the owner has entered into a contract to remedy a non-compliant situation. For new technology variances, deferral of immediate compliance is an approach that accommodates new technology while providing a mechanism for returning to the status that existed before the grant of a variance if the new technology, after use, is found to present a safety risk. Deletion of the reference to deferral in the definition would render unworkable the approach set out in the rules for new technology. The concept of deferral was used to make it clear that a variance is not permanent. No change is made.

The second was to capitalize the first word of the second sentence in the definition discussed above. That change is made.

The third is to change §74.60(a) to insert the word "alter" in the second sentence after the word "install". This change was proposed to make the second sentence of the subsection consistent with the first sentence where the published rule included the insertion of the word "alter". That change is made.

The fourth is to delete the word "tests" from §74.60(f). That change is made.

The fifth is to add the phrase "New Technology" before the word "Variances" in §74.70(n). That change is made.

The sixth is to replace the phrase "Inspectors' Manuals" with the title "Guide for Inspection of Elevators, Escalators, and Moving Walks" in §74.75(a)(2). That change is made.

The seventh is to amend §74.80(h) in two respects. The first is to correct the spelling of the word "Technology". That change is made. The second is to add this sentence, "For example, an applicant who applies for a variance of the following: door system, control system, and suspension system, would require three applications." The advisory board expressed concern that the rules lacked clarity with regard to limits on the reach of a variance. The Commission agrees that greater clarity is needed and additional language is added to §74.10(18) rather than adding clarifying language to a fee rule. The following language is added to the definition, "A variance applies to only one component, system, sub-system, function, or device. For example, one seeking a variance for a door system, a control system, and a suspension system would be required to file three separate variance applications."

The eighth is to change §74.85(c)(3) by adding this sentence. "If not approved, the Department shall outline the reasons for denial." That change is made.

The ninth and tenth propose a change to the appeal process that was proposed by staff in response to comments. The proposed process was to provide for appeal of a denial of an application for a New Technology Variance to the Director of Compliance and then to the Executive Director whose determination would be final. The Advisory Board proposed that the process begin with the Executive Director and then go to the Commission whose determination would be final. The board also proposed that the Commission be required to place an appeal on its next agenda. The Commission agrees in part with the board's proposal and has changed the appeals process as set out above in response to the comment suggesting an appeals process. The Executive Director will decide appeals and his decision is final though an applicant may request review by the Commission. The Commission's determination on review will be provided in writing to the applicant.

The eleventh change is to delete subsection (b)(1) from §74.100. The effect would be that the provisions of ASME A17.7/CSA B44-07 (A17.7) will be in effect in Texas. Section 74.100(b)(1), as published, deletes ASME A 17.1/CSA B44-07 (A17.1) requirement 1.2.1 (c), which provides that A17.7 may be followed to establish that equipment that does not meet requirements of A17.1 is permissible. The legislature has not adopted A17.7, which, according to included language, is intended to be, ". . . particularly useful for establishing safety of elevator systems, sub-systems, components, or functions involving innovative design and new technologies." Instead, the legislature has provided the Commission with authority to develop by rule a procedure for evaluating applications for use of new technology, and approving those applications when the applicant demonstrates that the new technology is equivalent or superior to the standards adopted by the Commission. A person wishing to employ new technology in jurisdictions where A17.7 applies may select an entity approved or designated by ANSI, ASME, or SCC to operate a certification program to review the technology. If the selected entity certifies the new technology, it may be used without further review or consideration. The legislature could have included A17.7 in the list of codes that the Commission is to consider when it adopts standards for equipment. Since it did not do so and since it provided another path for consideration and approval of new technology, A17.7 should not be allowed to apply in Texas. This change is not made.

In response to questions asked by the Elevator Advisory Board's Rules Work Group, §74.100(c)(1) and (c)(2) are changed by replacing the dates of April 1, 2008 with September 1, 2008.

The amendments and the new rule are adopted under Texas Health and Safety Code, Chapter 754 and Texas Occupations Code, Chapter 51, which authorizes the Department to adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Health and Safety Code, Chapter 754 and Texas Occupations Code, Chapter 51. No other statutes, articles, or codes are affected by the adoption.

§74.10.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) The Act--Texas Health and Safety Code, Chapter 754, Elevators, Escalators, and Related Equipment.

(2) Altered Equipment--Any changed equipment, including its parts, components, and/or subsystems, other than maintenance, repair, or replacement. However, the term does include any repairs and replacements performed as part of any alteration(s).

(3) Code Providers

(A) ASCE--American Society of Civil Engineers;

(B) ASCE 21--Automated People Mover Standards; and

(4) ASME A17.1--The ASME A17.1/CSA B 44-07 - "Safety Code for Elevators and Escalators" as adopted in §74.100.

(5) ASME A17.2--The currently published edition of "The Guide for Inspection of Elevators, Escalators, and Moving Walks".

(6) ASME A17.3--The ASME A17.3-2002, "Safety Code for Existing Elevators and Escalators."

(7) ASME A18.1--The ASME 18.1, "Safety Standards for Platforms Lifts and Stairway Chairlifts" as adopted in §74.100.

(8) Automated People Mover (APM)--a guided transit mode with fully automated operation, featuring vehicles that operate on guideways with exclusive right of way.

(9) Building Owner--The person or persons, company, corporation, authority, commission, board, governmental entity, institution, or any other entity that holds title to the subject building or facility. For purposes under these rules and the Act, an owner may designate an agent.

(10) Contractor--A person, partnership, company, corporation, or other entity engaging in the installation, alteration, repair, or maintenance of equipment. The term does not include an employee of a contractor.

(11) Delay--Postponement of compliance with a requirement of the applicable ASME Safety Codes or ASCE Standard as adopted in §74.100, for a specific period of time.

(12) Existing Equipment--equipment installed or altered before September 1, 1993.

(13) Inspection report--A Department approved form used by the inspector to report the inspection results of one unit of equipment.

(14) Inspector--A person engaged in the inspection of equipment for the purpose of determining compliance with these rules and adopted standards.

(15) New Equipment--equipment installed or altered on or after September 1, 1993.

(16) Publicly visible area of building--a location that is visible to the public in an elevator car or a common area lobby or hallway and accessible to the public at all times when any elevator is in operation, without the need for the viewer to obtain assistance or permission from building personnel.

(17) Reportable Condition--a condition which exists where a defect requires the equipment to be removed from operation to prevent a risk of serious injury to passengers, operators, or the general public.

(18) Variance, New Technology--Deferral of compliance with a requirement of the applicable ASME/ASCE Safety Codes to allow the installation of new technology if the new component, system, sub-system, function or device is found to be equivalent or superior to the standards adopted in §74.100. A new technology variance, once granted, may be applied to all like equipment installed in the state and a separate variance is not required for each installation. A variance applies to only one component, system, sub-system, function, or device. For example, one seeking a variance for a door system, a control system, and a suspension system would be required to file three separate variance applications.

(19) Waiver--Deferral of compliance with a requirement of the applicable ASME Safety Codes for an indefinite period of time.

§74.26.Reporting Requirements--Contractor.

(a) Contractors must submit to the Department reports regarding installation, repair, alteration, or maintenance jobs on a format approved by the Department.

(1) An initial report is due no later than 60 days of the application date and must include all jobs performed by the contractor during the two years prior to the application date.

(2) Quarterly reports are due each calendar year in accordance with the following schedule.

(A) 1st quarter--April 30

(B) 2nd quarter--July 31

(D) 4th quarter--January 31 of the next year.

(3) Quarterly reports must only include all jobs performed in the quarter which have not been previously reported to the Department.

(b) Contractors are not required to file a report with the Department regarding the items listed in subsection (a) above for equipment located in a single family dwelling, for construction-use only elevators or equipment in a building owned and operated by the federal government.

(c) Contractors shall, by e-mail, fax, letter or telephone, report to the Building Owner and Department, within 24 hours of discovery, all equipment they encounter that has a reportable condition.

§74.50.Reporting Requirements--Building Owner.

(a) To obtain a Certificate of Compliance, the building owner must submit to the Department within 60 days of the equipment inspection date, the following items:

(1) the application for Certificate of Compliance;

(2) a copy of the inspection reports for each unit of equipment;

(3) written documentation to verify that all violations of the applicable ASME Safety Codes or ASCE Standards as adopted in §74.100, cited on the inspection report, are in compliance with §74.70(a)(3);

(4) any application(s) for Delay or Waiver if applicable; and,

(5) all applicable fees.

(b) All Delay applications, received after September 1, 2003 to install door restrictor and fire service by September 1, 2010, must include the following on the delay application form or attach a statement to the delay application form:

(1) verification that the building owner has notified all tenants or occupants in the building that the elevators do not comply with the door restrictor or fire service requirements in the ASME A17.3-2002 Code and has made available to tenants or occupants upon request the building owner plan of compliance before 2010;

(2) the building owner plan of compliance before 2010; and

(3) compliance completion date.

(c) The owner shall notify the Department, in writing and within 30 days, of equipment that has been placed out of service. The equipment must be placed out of service in accordance with the definition in A17.1, "installation placed out of service."

(d) The owner shall notify the Department, in writing and within 30 days, of an elevator that has had alterations converting the equipment to a material lift. The conversion shall comply with the applicable sections of A17.1.

(e) The owner shall notify the Department, in writing and within 30 days, of a material lift that has had alterations converting the equipment to an elevator. The elevator must be inspected and brought into compliance with A17.1 as a new installation.

(f) When a Delay has been approved, the owner shall notify the Department, in writing within 30 days of the date of correction.

§74.60.Standards of Conduct for Inspector or Contractor Registrants.

(a) Competency. The registrant shall be knowledgeable of and adhere to the Act, these rules, the ASME Safety Codes or ASCE Standards as adopted in §74.100, and all procedures established by the Department for equipment inspections or performance of a contract to install, alter, repair, or maintain equipment. It is the obligation of the registrant to exercise reasonable judgment and skill in the performance of equipment inspections or performance of a contract to install, alter, repair, or maintain equipment.

(b) Integrity. A registrant shall be honest and trustworthy in the performance of equipment inspections or performance of a contract to install, alter, repair, or maintain equipment, and shall avoid misrepresentation and deceit in any fashion, whether by acts of commission or omission. Acts or practices that constitute threats, coercion, or extortion are prohibited. The registrant shall accurately and truthfully represent to any prospective client his/her capabilities and qualifications to perform the services to be rendered.

(c) Interest. The primary interest of the registrant is to ensure compliance with the Act, these rules, and the ASME Safety Codes or ASCE Standards adopted in §74.100, and all procedures established by the Department. The registrant's position, in this respect, should be clear to all parties concerned while conducting equipment inspections or completing the performance of a contract to install, alter, repair, or maintain equipment.

(d) Conflict of Interest. A registrant is obliged to avoid conflicts of interest and the appearance of conflicts of interest. A conflict of interest exists when an inspector performs or agrees to perform equipment inspections for a building in which he has a financial interest, whether direct or indirect. A conflict of interest also exists when a registrant's professional judgment and independence are affected by his/her family, business, property, or other personal interests or relationships.

(e) Specific Rules of Conduct. A registrant shall not:

(1) participate, whether individually or in concert with others, in any plan, scheme, or arrangement attempting or having as its purpose the evasion of any provision of the Act, these rules, or the Standards adopted by the Commission;

(2) knowingly furnish inaccurate, deceitful, or misleading information to the department, a building owner, or other person involved in equipment inspections or equipment contracts;

(3) state or imply to a building owner that the department will grant a delay or waiver;

(4) engage in any activity that constitutes dishonesty, misrepresentation, or fraud while performing equipment inspections or completing an equipment contract;

(5) perform equipment inspections or complete an equipment contract in a negligent or incompetent manner;

(6) perform equipment inspections in a building or facility in which the inspector registrant is an owner, either in whole or in part;

(7) perform equipment inspections in a building or facility wherein the registrant, for compensation, participated in obtaining an equipment contract for the building;

(8) indulge in advertising that is false, misleading, or deceptive;

(9) misrepresent the amount or extent or prior education or experience to any client; or

(10) hold out as being engaged in partnership or association with any person unless a partnership or association exists in fact.

(f) An inspector registrant may not perform inspections upon equipment for which the inspectors' employer also has a contract to perform installations, maintenance, repairs, replacements or alterations on that equipment.

(g) An inspector registrant shall withdraw from employment when it becomes apparent that it is not possible to faithfully discharge the duty and performance of services owed the client, but then only upon reasonable notice to the client.

§74.70.Responsibilities of the Building Owner.

(a) The building owner shall:

(1) obtain the services of an inspector registered with the Department to perform inspections in accordance with §74.75 and §74.100;

(2) keep the equipment free from reportable conditions;

(3) have all violations cited on an inspection report;

(A) corrected within 60 calendar days of the date of inspection;

(B) have them under contract to be corrected and all work completed not later than the next inspection due date; or

(b) The owner of the building in which equipment is located shall have such equipment inspected at an interval not to exceed every twelve (12) months to determine compliance with the applicable standards adopted in §74.100.

(c) The owner of the building in which the equipment is located must have available all maintenance and inspection records and maintenance control programs for the equipment during the life of the equipment as required by the applicable standards adopted in §74.100. These records and programs shall be available in the building.

(d) The building owner or the owner's representative must report all accidents, as defined in Texas Health and Safety Code, §754.011, involving equipment to the Department, using a Department approved form, within 72 hours of the accident. If the accident results in serious bodily injury or a fatality, the equipment shall be removed from service and shall not be moved (except as necessary to extricate an injured party or effect a life-saving rescue) or returned to service until a representative of the Department completes an investigation and issues an approval to return the unit to service.

(e) The building owner shall ensure that all of the tests required by the applicable codes and standards adopted in §74.100 are performed.

(f) If any equipment is determined to have a reportable condition by inspection or other means, the building owner shall notify the Department in writing within 24 hours, and shall place the unsafe equipment out of operation until repairs to correct the reportable condition(s) are completed. After repairs have been completed, the building owner shall have the equipment re-inspected and re-certified and submit written verification to the Department that the reportable condition has been corrected before returning the equipment to service.

(g) New equipment installations must be inspected and tested to determine their safety and compliance with the requirements of the codes and standards as adopted in §74.100 before being placed in service. The equipment shall be free of any violations, unless a Waiver, Delay or New Technology Variance has been granted by the Department in writing, before being placed in service.

(h) Altered equipment must be inspected and tested to determine its safety and compliance with the requirements of the codes and standards as adopted in §74.100 before being placed back in service. The equipment shall be free of any violations, unless a Waiver, Delay or New Technology Variance has been granted by the Department in writing, before being placed back into service.

(i) Equipment must be tested to determine its safety and compliance with the requirements of the codes and standards as adopted in §74.100.

(j) The owner of the building in which equipment is located must obtain a yearly certificate of compliance from the Department evidencing that each unit of equipment in the building is in compliance with the Act and all applicable rules and standards. The owner of the building must have a current Certificate of Compliance in order to operate equipment located in the building.

(k) The building owner must display the current Certificate of Compliance:

(1) if the certificate relates to an elevator,

(A) inside the elevator car not more than 7'0" or less than 3'0" above the finished car floor;

(B) outside the elevator car in the main elevator lobby within 10 feet of the elevator call button; or

(i) accessible to the public without assistance or permission during all hours in which any elevator is in operation and

(ii) identified by a plaque mounted in the elevator car or within 10 feet of the elevator call button in the main elevator lobby. The font size for letters on the plaque shall be at least 18 and the plaque must state that the elevator is regulated by the Texas Department of Licensing and Regulation and include the department's telephone number 1-800-803-9202 and the building management's telephone number.

(2) if the certificate relates to an escalator, in a common area lobby or hallway location that is:

(A) accessible to the public without assistance or permission during all hours in which any escalator is in operation and

(B) identified by a plaque mounted within 10 feet of entry and exit of escalator in the main escalator lobby. The font size for letters on the plaque shall be at least 18 and the plaque must state that the escalator is regulated by the Texas Department of Licensing and Regulation and include the department's telephone number 1-800-803-9202 and the building management's telephone number.

(3) on the box containing the control circuitry if the certificate relates to a chairlift, platform lift, automated people mover operated by cables, moving sidewalk, or related equipment.

(l) The building owner must display an inspection report at the location defined in subsection (k), selected by the owner, until a current certificate of compliance is issued by the Executive Director.

(m) The building owner must have equipment re-inspected and re-certified if the equipment:

(1) has been altered;

(2) has been determined to have a reportable condition;

(3) has had any alteration made to the interior of elevator car enclosures or flooring; or

(4) inspection report shows an existing violation has continued longer than permitted in a delay granted by the executive director.

(n) The building owner shall have copies of all current department issued Waivers, Delays, and New Technology Variances posted in the machine room/machinery space in a readily accessible and visible location available to elevator personnel.

§74.75.Responsibilities of the Inspector.

(a) Inspection procedures.

(1) The inspector must inspect all equipment for compliance with the applicable ASME Safety Codes or ASCE Standards as adopted in §74.100.

(2) Inspectors must use the currently published edition of ASME A17.2, and the "Guide for Inspection of Elevators, Escalators, and Moving Walks" to conduct inspections and witness tests for compliance with the ASME Safety Codes or ASCE Standards adopted in §74.100.

(3) The inspector shall report to the building owner before beginning any inspections.

(4) The inspector and the building owner must sign and date the inspection report.

(5) The inspector shall not perform any of the tests.

(6) On new or altered equipment installations, the inspector may perform an inspection prior to the installation being completed. However, on these installations the Department will only accept inspection reports for final inspections performed by the inspector after the installation is completed.

(b) Department forms.

(1) The inspector must use current Department approved forms for reporting inspections.

(2) The Department forms shall be filled out completely, and shall be used to report the inspections of existing equipment and final inspections of new or altered equipment.

(3) The inspector must list all ASME Code violations by code number and code edition for each unit inspected, and include a written description of the violation on the Department Form. If the ASME Code refers to another code, the inspector must list both code numbers and include a written description of the violation.

(4) The inspector may not use the official elevator equipment inspection form to report the results of an inspection to the owner of equipment located in a single-family dwelling, construction-use only elevator, or Federal Facility.

(1) Test Tags

(A) The inspector must purchase test tags from the Department and shall be the person who attaches these tags to the inspected equipment.

(B) The inspector shall inscribe all required information on each Department test tag. Department test tags shall not be replaced until after all date and signature spaces on the tag are filled.

(C) Upon completion of the initial Acceptance test, Department test tags shall be attached to each individual piece of equipment on or adjacent to the equipment controller or main line disconnect so that it is in a conspicuous location.

(D) All devices and adjustments required to be sealed by the adopted standard shall be sealed with wire rope and lead seal by the inspector witnessing the tests(s). Once a device or adjustment has been so sealed, there shall be no need to replace the seal unless it is broken for whatever reason, whereupon an inspector shall witness the test and provide a seal as prescribed herein prior to the unit being returned to service. The lead seal shall be crimped onto the wire rope using a crimping tool bearing the Department's seal and the crimping tool number assigned to the inspector. An inspector may use the required crimping tool to seal lead seals provided by the manufacturer at the factory as long as the assigned number is legible.

(E) Inspector's equipment may be purchased from the Department for:

(i) $200 per 100 test tags (sold in multiples of 100); and

(ii) $10 per 100 wire ropes and lead seals (sold in multiples of 100).

(F) The inspector shall verify that contractor's test tags are placed on the equipment in conformance with the ASME Safety Codes or ASCE Standards adopted in §74.100.

(2) Decals

(A) Each unit of equipment shall be identified with a unique identification number decal issued by the Department, which the inspector must affix to the upper right hand corner of the control panel. The decal shall remain on the control panel for the life of the equipment.

(B) An additional Department decal shall not be affixed to equipment that has a current Department decal displayed.

(C) All correspondence and inspection reports shall reference the decal number and Department building ID number, as reflected on the Certificate of Compliance.

(D) If an inspector places a new decal on a unit of equipment to replace a lost or destroyed decal, the inspector must report the equipment's location, old decal number, and new decal number to the Department within ten calendar days of placing the new decal number upon the equipment.

§74.80.Fees.

(a) Inspector registration fees.

(1) original--$100

(2) renewal application--$100

(3) Revised/Duplicate registration card--$25

(b) Certificate of Compliance filing fees:

(1) submitted by building owner with a copy of inspection report within 60 days of the equipment inspection date--$30 per unit of equipment;

(2) $10 late filing fee per each unit for every thirty (30) day period if the inspection report, filing fees, and verification about correcting deficiencies in the inspection report are filed after the 90th day from the equipment inspection date, and

(3) $25 per Revised/Duplicate Certificate.

(c) Waiver/Delay application fee: $50 for each violation of the ASME Safety Codes or ASCE Standards as adopted in §74.100 per unit of equipment requested to be waived or delayed.

(d) Fees shall be charged and collected by the Department for a waiver or delay application for an institution of higher education.

(e) Contractor Registration fees

(1) original--$300

(2) renewal application--$300

(3) Revised/Duplicate registration card--$25

(f) The fee for Department personnel to disconnect power or lockout equipment in a building shall be $200 per hour. Travel and per diem costs shall be reimbursed by the building owner in accordance with the current rate as established in the current Appropriations Act. The Department shall present a billing statement to the building owner or representative after disconnecting the power or lockout that is payable upon receipt unless the Department receives in writing verification that the expenses would be paid no later that the 10th day after the date power is reconnected or equipment is unlocked. The fee for Department personnel to reconnect power or unlock equipment is the same to disconnect or lockout equipment.

(g) Late renewal fees for Inspector and Contractor registrations issued under this Chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(h) The fee for a Variance - New Technology application is $2,500.

(i) The fee to file an appeal of a denial of an application for a Variance - New Technology is $200.

§74.85.Responsibilities of the Department.

(a) When issuing Certificates of Compliance the Department shall:

(1) Assure that each certificate includes the decal number, inspection date, building name and physical address, owner name and mailing address, inspector name and QEI #, current inspection date, the date of the last inspection, the due date of the next inspection, contact information at the department to report a violation, indicate status of correcting code violations and the Executive Director's signature and date.

(2) Use the following procedures to issue a Certificate of Compliance:

(A) review inspection report and fees received by the Department;

(B) review verification submitted by building owner indicating which code violations have been remedied and which code violations are under contract to be corrected;

(D) notify building owner with a Notice of Incomplete Submittal asking for any missing inspection documents and fees; and

(E) notify building owner of any denied waiver or delay requests and ask for verification that violations have been remedied or under contract to be corrected.

(F) After a determination is made that the building owner submitted an inspection report with the correct amount of filing fees and all deficiencies in the inspection report have been corrected, or under contract to be corrected, or delay or waiver granted, then a certificate of compliance is issued for each unit of equipment.

(b) The Department shall provide notification to building owners, architects, and other building industry professionals regarding the necessity of annually inspecting equipment through the Department's website, press releases, and group presentations.

(c) Prior to the installation of any device, equipment or technology not permitted by the currently adopted standards, a request for New Technology Variance must be granted by the Department.

(1) Requests for New Technology Variances shall contain the following, if applicable:

(A) an enumeration and description of all the requirements of the adopted standard for which a new technology variance is being requested;

(B) documentary evidence to support a claim of equivalence or superiority to the requirements of the adopted standard;

(C) documentary evidence that the new technology is being or may be considered by the ASME code committee(s) for inclusion in a future standard;

(D) an estimated time frame for the approval of the new technology by the ASME code committee(s);

(E) any additional supporting evidence deemed by the applicant to be necessary to assist in making a determination; and

(F) the new technology variance application fees outlined in §74.80(h).

(2) The applicant shall be advised of the status of the application, in writing, not less often than quarterly.

(3) The applicant for a New Technology Variance shall be notified of the Department's decision in writing. If approved, the notification will itemize the specific code requirement deviations for which the variance(s) are approved.

(4) Appeal of Variance Denial.

(B) The applicant may request, in writing, within ten (10) calendar days of notification of the Executive Director's decision, a review by the Texas Commission of Licensing and Regulation.

(D) The decision of the Executive Director regarding the Variance Application is final and binding on the applicant.

(d) The Department may periodically review inspection reports to determine compliance with the applicable statutes and administrative rules.

(e) The Department may require inspector attendance at periodic rules and/or law update seminars conducted by the Department when the Executive Director determines such seminars to be necessary.

(f) The Department may conduct code, rule and law or other inspector training seminars where attendance by inspectors is not mandatory.

§74.100.Technical Requirements.

(a) The Department adopts the standards for the installation, maintenance, repair, replacement, alteration, testing, operation, and inspection of equipment that are contained in the following codes: ASME A17.1-2007/CSA B44-07 as amended below, ASME A17.3-2002, ASME A18.1-2005 and ASCE Codes 21.

(b) The following amendments shall be made to ASME A17.1-2007/CSA B44-07:

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

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

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

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

(5) Delete 8.11.2.2.7 standby or emergency power operation.

(6) Delete requirement 8.11.2.3.5 emergency and standby power operation.

(7) Delete requirement 8.11.3.2.3(f) standby power operation.

(8) Delete the reference to ASME A17.3 contained within Section 9.1.

(9) Delete Appendix E in its entirety.

(1) ASME A17.1-2007/CSA B44-07 and the amendments in §74.100(b) shall be effective on September 1, 2008.

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

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

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 10, 2008.

TRD-200800129

William H. Kuntz, Jr.

Executive Director

Texas Department of Licensing and Regulation

Effective date: February 1, 2008

Proposal publication date: August 10, 2007

For further information, please call: (512) 463-7348