HBA-CMT C.S.S.B. 1198 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1198 By: Carona Licensing & Administrative Procedures 5/9/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE The Texas Department of Licensing and Regulation is charged with the regulation and enforcement regarding elevator safety and required annual inspections. To better facilitate the functions of the agency, several changes to current state law should be made. C.S.S.B. 1198 provides changes to the current law that will better enable the Texas Department of Licensing and Regulation to carry out its regulatory functions. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the commissioner of licensing and regulation in SECTION 1 (Sections 745.0141, 754.015, and 754.0172, Health and Safety Code) of this bill. ANALYSIS C.S.S.B. 1198 amends the Health and Safety Code to amend provisions relating to the inspection and certification of elevators, escalators, and related equipment. The bill specifies that the provisions of the bill do not apply to equipment in a private building owned by a labor union, trade association, private club, or charitable organization that has two or fewer floors and an elevator in a single-family dwelling (Sec. 754.0111). The bill increases the number of elevator advisory board (board) members appointed by the governor rather than the commissioner of licensing and regulation (commissioner) from 9 to 12, increases the number of public members on the board from one to four, and provides that one member of the board must be a licensed or registered engineer or architect. The bill provides that each board member serves at the will of the governor rather than the commissioner and unless removed by the governor, serves until the member's successor is appointed by the governor. The bill requires the governor rather than the commissioner to appoint a presiding officer of the board (Sec. 754.012). The bill requires the board to advise the commissioner on sources of information relating to equipment safety, and public awareness programs related to elevator safety, including programs for sellers and buyers of single-family dwellings with elevators or chair lifts (Sec. 754.013). The bill prohibits standards adopted by the commissioner from containing requirements in addition to requirements in the American Society of Mechanical Engineers Code for Elevators and Escalators A18 (ASME Code) or the American Society of Civil Engineers Code 21 (ASCE Code). The bill provides that the standards must allow alteration of existing equipment if the alteration does not diminish the safety of the equipment below the level required by this bill at the time of alteration. The bill prohibits the accumulated total time of all delays granted by the commissioner from exceeding three years unless granted a delay until September 1, 2005 for compliance with the requirements for door restrictions or firefighter's service or as allowed by the commissioner. The bill authorizes the commissioner to grant a waiver of compliance if the commissioner finds that noncompliance with adequate alternative safeguards will not constitute a significant threat to worker safety. The bill requires the commissioner to grant a waiver of compliance if the noncompliance resulted from compliance with a municipal equipment construction code at the time of the original installation and the noncompliance does not pose imminent and significant danger. The bill removes the authorization for the commissioner to charge a fee for an application for waiver or delay. The bill specifies that one application for a waiver or delay is authorized to contain all requests related to a unit of equipment rather than a particular building (Sec. 754.014). The bill sets forth the standards elevators or chairlifts must comply with if installed in a single-family dwelling on or after January 1, 2002. The bill requires the commissioner to adopt rules containing minimum safety standards that must be used by QEI-1 certified inspectors when inspecting elevators and chairlifts installed in single-family dwellings before January 1, 2002. The bill does not require a contractor to report to the Texas Department of Licensing and Regulation (department) any information concerning equipment in a single-family dwelling or the contractor's work on the equipment (Sec. 745.0141). The bill revises current rulemaking by the commissioner, and sets forth provisions for what the commissioner is required to provide for by rule and what the commissioner is prohibited from requiring or prohibiting by rule. The bill sets forth what services the commissioner is authorized to charge a fee for by rule (Sec. 754.015). The bill amends provisions relating to the inspection report and certificate of compliance for each unit of equipment. The bill requires an inspector to issue an inspection report to a building owner not later than the 10th calendar day after the date of inspection. The bill requires the commissioner to issue a certificate of compliance to the building owner if an application is submitted by the building owner with applicable fees and the application reflects that the equipment has been inspected by a certified inspector, the inspection report shows the equipment is in compliance with the requirements of this bill, and, to the extent the report shows any noncompliance that does not pose an imminent and significant danger, the building owner acknowledges that the noncompliance will be remedied within a reasonable period not later than six months following the date of the inspection report or has been granted a waiver or delay for compliance by the commissioner (Sec. 754.016). The bill amends provisions relating to certified inspectors, and adds that an individual must attend educational courses as required by the department. The bill specifies that a person assisting a certified inspector and working under the direct on-site inspection of the inspector is not required to be certified. The bill provides that a registration expires on the first anniversary of the date of issuance (Sec. 754.017). The bill prohibits a person from installing, repairing, or maintaining equipment without registering as a contractor with the department. The bill requires a contractor to submit an application for registration and pay appropriate fees to the department. The registration application form is authorized to require information concerning the background, experience, or identity of the applicant. The bill requires a person registering as a contractor under the provisions of the bill to submit to the department an initial report no later than the 60th day following the application date, and sets forth contents of the report. The bill provides that a registration expires on the first anniversary of the date of issuance, and requires a registered contractor to submit a quarterly report to the department and sets forth contents for the report (Sec. 754.0171). The bill prohibits an individual from installing, repairing, wiring, testing, or maintaining equipment without obtaining an elevator mechanic license or an emergency or temporary elevator mechanic license except as provided for by this bill. The bill does not require a person to be licensed if the person is directly supervised by a licensed elevator mechanic on-site in a building or building complex. The bill authorizes the commissioner to waive any examination requirement for an applicant with a valid license from another state that has a reciprocity agreement with this state, and requires an individual who applies for a temporary or emergency license or license by reciprocity to pay an application fee. The bill sets forth requirements for individuals applying for a elevator mechanic license. The bill requires the commissioner to annually renew an elevator mechanic license if the license holder completes the procedures for renewal. The bill sets forth procedures for the notification of results of the examination. The bill requires the commissioner to prepare and administer examinations and continuing education programs for licenses or certify other persons to perform those functions, and authorizes the department to recognize and certify continuing education programs and long-term training programs for elevator mechanics. The bill requires and authorizes the commissioner to adopt rules to carry out the provisions pertaining to elevator mechanic licenses and rules for a standard of conduct for individuals holding an elevator mechanic license (Sec. 754.0172). The bill amends provisions relating to the powers of municipalities and the duties of real property owners (Secs. 754.018 and 754.019). The bill authorizes the commissioner to appoint a chief elevator inspector to administer the equipment inspection and registration program. The bill sets forth provisions for who is authorized to be a chief elevator inspector (Sec. 754.020). The commissioner is required to compile a list of contractors who are registered with the department (Sec. 754.021). The bill provides that if the department rather than the commissioner learns of a situation of noncompliance, the department is required to send notice by certified mail of the noncompliance and the actions required to remedy the noncompliance to the record owner of the real property (Sec. 754.022). The bill authorizes a department employee rather than the commissioner to enter property to inspect the equipment or investigate any imminent and significant danger and to verify whether an inspection report or certificate of compliance has been displayed as required. The bill authorizes the commissioner to deny, suspend, or revoke the license or registration of an inspector or contractor and assess an administrative penalty for committing certain infractions. The bill provides that the proceedings for denial, suspension, or revocation of a license or registration and appeals from those proceedings are governed by the Administrative Procedure Act. If requested, the attorney general rather than the commissioner is required to represent the department and its personnel in a suit. The bill authorizes the commissioner to issue an emergency order to enforce provisions of the bill if the commissioner determines that an emergency exists requiring immediate action to protect public health and safety. The bill sets forth provisions relating to enforcement of the emergency order (Sec. 754.023) EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 1198 differs from the original bill by modifying the definitions of "accident," "alteration," "annual inspection," "contractor," "equipment," "related equipment," and "unit of equipment." The substitute adds the definition of "ASCE Code 21" to the bill (Sec. 754.011). The substitute provides that each elevator advisory board (board) member serves at the will of the governor rather than the commissioner of licensing and regulation (commissioner) until the member's successor is appointed by the governor and requires the governor instead of the commissioner to appoint a presiding officer of the board (Sec. 754.012). The substitute adds duties to the existing duties of the board (Sec. 754.013). The substitute also adds the American Society of Civil Engineers Code 21(ASCE Code 21) to the codes the commissioner is to use when adopting standards for the installation, operation, alteration, and inspection of equipment used by the public. The substitute prohibits the standards adopted by the commissioner from containing requirements in addition to requirements of ASCE Code 21. The substitute adds that the commissioner is authorized to grant a waiver of compliance from an applicable code requirement if the commissioner finds that the noncompliance will not constitute a significant threat to worker safety (Sec. 754.014). The substitute adds standards for equipment in single-family dwellings, and requires the commissioner to adopt rules containing minimum safety standards to be used by QEI-1 certified inspectors (Sec. 745.0141). The substitute increases the fee from no more than $30 to no more than $100 for registering with the Texas Department of Licensing and Regulation (department) as an inspector or contractor, and increases from no more than $50 to no more than $100 the fee for providing certified inspector educational courses. The substitute adds provisions for what additional services the commissioner by rule is authorized to charge a fee for (Sec. 754.015). The substitute provides that a person assisting a certified inspector working under the on-site direct supervision of the inspector is not required to be certified as an inspector (Sec. 754.017). The substitute adds provisions specifying the information that may be required on a registration application form for contractor registration. The substitute requires a person registering as a contractor to submit an initial report to the department and sets forth what information the report is to contain (Sec. 754.0171). The substitute adds provisions pertaining to the issuance of an elevator mechanic license, and authorizes and requires the commissioner to adopt rules for carrying out of the provisions pertaining to elevator mechanic licenses (Sec. 754.0172). The substitute requires the owner of real property on which equipment covered by the bill is located to report to the department each accident involving equipment no later than 72 hours following the accident (Sec. 754.019). The substitute authorizes the commissioner to deny, suspend, or revoke a license or registration and assess an administrative penalty for certain actions by an individual. The bill adds that the proceedings for the denial, suspension, or revocation of a license or registration and appeals from those proceedings are governed by the Administrative Procedure Act (Sec. 754.023).