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You are here: Home . rules . 2006 . 0621a-059

SUBCHAPTER E. TEXAS WINDSTORM INSURANCE ASSOCIATION

Division 1. Plan of Operation 28 TAC §§5.4010 and 5.4011

Division 7. Inspections for Windstorm and Hail Insurance 28 TAC §5.4603

1. INTRODUCTION. The Commissioner of Insurance adopts amendments to §5.4010 and new §5.4011 concerning building code specifications in the plan of operation of the Texas Windstorm Insurance Association (Association) for structures to be eligible for windstorm and hail insurance coverage through the Association, and adopts amendments to §5.4603 which adopts by reference the forms to be used for windstorm inspections to determine compliance with applicable building code requirements in the plan of operation of the Association. The sections are adopted with changes to the proposed text published in the January 5, 2007 issue of the Texas Register (32 TexReg 28).

2. REASONED JUSTIFICATION. The adopted amendments to §5.4010(a) are necessary to specify that the 2003 Editions of the International Residential Code (IRC) and the International Building Code (IBC), each with 2003 Texas Revisions, are applicable within the catastrophe area until January 1, 2008 for structures to be eligible for windstorm and hail insurance coverage through the Association. The IRC specifies building code standards for residential structures, and the IBC specifies building code standards for other structures, including commercial buildings and government buildings. The 2006 Editions of the IRC and the IBC, each as revised by 2006 Texas Revisions, are adopted by reference in new §5.4011, to be effective for structures constructed, repaired, or to which additions are made on or after January 1, 2008 for such structures to be eligible for windstorm and hail insurance coverage through the Association.

The proposal published in the January 5, 2007 Texas Register referenced Article 21.49 of the Insurance Code and the applicable sections and subsections of that article. The nonsubstantive revision of Article 21.49 enacted by the 79th Legislature in HB 2017 became effective April 1, 2007, and therefore, all statutory references in the proposal have been changed to the new revised Insurance Code references in this adoption order. Sections 2210.004 (formerly Article 21.49 §3(f)) and 2210.251 (formerly Article 21.49 §6A(a)) of the Insurance Code require that all structures that are constructed or repaired or to which additions are made on or after January 1, 1988, to be considered insurable property for windstorm and hail insurance from the Association, must be inspected or approved by the Commissioner for compliance with the building specifications in the plan of operation. Section 2210.153 (formerly Article 21.49 §5(c)) of the Insurance Code authorizes the amendment of the Association's plan of operation, and §2210.251 (formerly Article 21.49 §6A(a)) of the Insurance Code provides that after January 1, 2004, for geographic areas specified by the Commissioner, the Commissioner by rule shall adopt the 2003 International Residential Code for one- and two-family dwellings published by the International Code Council and by rule may adopt a subsequent edition of that code and any supplements published by the International Code Council (ICC) and amendments to the code. Section 2210.252 (formerly Article 21.49 §5(m)) of the Insurance Code provides that the Commissioner by rule may supplement the Association's plan of operation building specifications with the structural provisions of the IRC, and by rule may adopt a subsequent edition of the IRC and a supplement published by the ICC or an amendment to that code.

The adoption of the 2006 Editions of the IRC and the IBC, each as revised by the 2006 Texas Revisions, was recommended on July 12, 2006, by the Advisory Committee on Building Code Specifications and Maintenance (Advisory Committee) pursuant to §2210.307 (formerly Article 21.49 §6C) of the Insurance Code, with the exception of a change in the scope of the area to which a new §R325 of the 2006 Edition of the IRC, which was added to the IRC as a Texas Revision, and a new §1716 of the 2006 Edition of the IBC, which was added to the IBC as a Texas Revision, apply.

Both §R325 and §1716 set standards for corrosion resistant fasteners and metal connectors. The Advisory Committee recommended that these two standards be used for structures, including all open structural spaces and vented or enclosed areas and heated and cooled living spaces, in those designated catastrophe areas seaward of the Intracoastal Canal and catastrophe areas inland of the Intracoastal Canal and within 25 miles of the Texas coastline, but not for structures located in catastrophe areas inland and west of the specified boundary line in the designated catastrophe areas. New §5.4011 applies §R325 and §1716 to all open spaces of structures located inland and west of the specified boundary line in the designated catastrophe areas in addition to applying to the areas recommended by the Advisory Committee. Structural open areas include porches, decks, carports, exterior wall coverings, roof coverings, metal ties for stone and masonry veneer, the underside of elevated structures, anchors for securing mechanical equipment, garage door attachments, roof vent attachments, skylight attachments, and impact protective systems (shutters). Therefore, the new section provides standards for corrosion resistant fasteners and metal connectors used in all open areas of structures located in designated catastrophe areas, but does not require corrosion resistant fasteners in vented or enclosed areas, or in heated and cooled living areas in these structures, inland and west of the specified boundary line in the designated catastrophe areas unless otherwise specified in the IRC or IBC.

The adoption of the 2006 Editions of the IRC and IBC, each with Texas Revisions, is necessary to promulgate the most current wind load technology and construction standards for structures in the designated catastrophe areas to be eligible for windstorm insurance through the Association. The 2006 Editions of the IRC and IBC, each with Texas Revisions, reference the most recent American Society of Civil Engineers standard, known as the ASCE 7-05, which is used by architects, engineers, and structural designers throughout the construction industry nationwide. The adoption by reference of the 2006 Editions of the IRC and the IBC, each with Texas Revisions, will provide guidance and clarification for construction in the designated catastrophe areas, and when properly employed, will result in consistency and uniformity in the design, construction, and inspection of residences and businesses participating in the windstorm inspection process. The utilization of strict building codes is the most effective method of mitigating loss in areas which are vulnerable to catastrophic windstorms.

Adopted §5.4011(b) is necessary to exempt historic structures from §5.4011(a) for repairs, alterations, and additions necessary for the preservation, restoration, rehabilitation or continued use of a historic structure.

The adopted amendments to §5.4603(a) are necessary to modify Forms WPI-2-BC-1, WPI-2-BC-2, WPI-2-BC-3 and WPI-2-BC-4, which are inspection verification forms pertaining to projects commencing construction at various times in the past, to include a space to list other as a description of a building modification not otherwise specified in the printed checklist of the forms; to modify Forms WPI-2-BC-2, WPI-2-BC-3 and WPI-2-BC-4 to include verification of exposure category used to define the design conditions for a building or structure; to modify Form WPI-2-BC-4 to indicate that it is not to apply to projects commencing construction after January 1, 2008; to adopt by reference new Form WPI-2-BC-5, a windstorm inspection verification form that will be used to document an inspection of a project that commenced construction on or after January 1, 2008; and to update the Design Certification Form WPI-2D to apply to projects that will commence construction on or after January 1, 2008.

Following the publication of the proposed amendments in the Texas Register on January 5, 2007, the Department received written comments from interested parties. The Department held a hearing on February 13, 2007, at which the Commissioner heard testimony and the Department received additional written comments. The Department has not made any changes to the proposed text as a result of comments. However, the Department has made necessary changes to the proposed text to allow adequate advance notice of the effective dates of standards, to align timelines for the usage of appropriate inspection forms, and to achieve consistency with the effective date of this adoption. The changes in the proposed effective dates of the 2006 Editions of the IRC and the IBC, each with Texas Revisions, and of the forms adopted by reference in §5.4603(a)(2), (a)(3), (a)(4), (a)(5), (a)(6), and (a)(7), are necessary to give architects, engineers, structural designers, builders and property owners adequate time to comply. None of the changes materially alter issues raised in the proposed rule, introduce new subject matter, or affect persons other than those previously on notice. The specific changes are as follows.

The proposed effective dates for the 2006 Editions of the IRC and the IBC, each with Texas Revisions, are changed from September 1, 2007 to January 1, 2008. In proposed §5.4010(a), the date of September 1, 2007 for the end of the applicability period of the 2003 Editions of the IRC and the IBC, each with Texas Revisions, is changed to January 1, 2008. The proposed dates for the end of the applicability of wind resistance standards associated with the 2003 Editions of the IRC and the IBC in §5.4010(a)(1), (a)(2), and (a)(3) are changed from September 1, 2007 to January 1, 2008. In new §5.4011(a), the proposed effective dates of the 2006 Editions of the IRC and the IBC, each with Texas Revisions, are changed from September 1, 2007, to January 1, 2008. In §5.4011(a)(1), (a)(2), and (a)(3) the proposed effective dates of wind resistance standards associated with the 2006 Editions of the IRC and IBC are changed from September 1, 2007, to January 1, 2008. To coincide with the adopted effective date of the 2006 Editions of the IRC and the IBC, each with Texas Revisions, forms adopted by reference in §5.4603(a)(2), (a)(3), (a)(4), (a)(5), (a)(6), and (a)(7) are effective January 1, 2008 rather than September 1, 2007 as proposed.

3. HOW THE SECTIONS WILL FUNCTION. The adopted amendment to §5.4010(a) specifies the time period of effectiveness of the 2003 Editions of the IRC and the IBC, each with 2003 Texas Revisions, to be on or after January 1, 2005, and before January 1, 2008.

Subsection (a)(1) - (3) of §5.4010 specifies the wind resistance standards for structures built seaward of the Intracoastal Canal, inland of the Intracoastal Canal and within approximately 25 miles of the Texas coastline and east of the specified boundary line and certain areas in Harris County, and areas inland and west of the specified boundary line, respectively. These wind resistance standards conform to the 2003 IRC and IBC standards. The adopted amendments to the subsection specify the time period of effectiveness of the wind resistance standards for the 2003 IRC and IBC to be on and after January 1, 2005, and before January 1, 2008. An adopted amendment to §5.4010(a)(2) also corrects an erroneous cross reference.

Adopted subsection (a) of §5.4011 adopts by reference the 2006 Editions of the IRC and the IBC, each with Texas Revisions, to be effective for all structures in the designated catastrophe areas that are constructed, repaired, or to which additions are made on or after January 1, 2008 in order for the structures to be eligible for windstorm coverage through the Association.

Adopted subsection (a)(1) - (3) of §5.4011 provides the wind resistance standards for structures built seaward of the Intracoastal Canal, inland of the Intracoastal Canal and within approximately 25 miles of the Texas coastline and east of the specified boundary line and certain areas in Harris County, and areas inland and west of the specified boundary line, respectively. The wind resistance requirements conform to the 2006 IRC and IBC standards, and are effective for structures constructed, repaired, or to which additions are made on or after January 1, 2008, for the structures to be eligible for catastrophe property insurance.

Adopted subsection (b) of §5.4011 provides an exemption from §5.4011(a) for repairs, alterations, and additions necessary for the preservation, restoration, rehabilitation or continued use of a historic structure. Subsection (b)(1) - (3) of §5.4011 defines the attributes that make a structure a historic structure.

The adopted amendments to §5.4603(a) modify four inspection verification forms pertaining to projects commencing construction at various times in the past, introduce one new inspection verification form to apply to projects commencing construction on or after January 1, 2008, and update one design certification to apply to projects commencing construction on or after January 1, 2008.

4. SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Comment: Two commenters express support for the adoption of the 2006 editions of the IRC and IBC with Texas Revisions.

Agency Response: The Department appreciates the supportive comments.

Comment: Two commenters oppose the Texas Revisions to the 2006 Editions of the IRC and IBC because, according to the commenters, any changes to the two codes should only come from the International Code Council.

Agency Response: Sections 2210.251 (formerly Article 21.49 §6A(a)), 2210.252 (formerly Article 21.49 §5(m)), 2210.307 (formerly Article 21.49 §6C) and 2210.308 (formerly Article 21.49 §6C(n)) of the Texas Insurance Code clearly authorize modifications to the IRC and IBC if the modifications increase the effectiveness of the standards. Under this statutory authority, the Department has adopted Texas amendments to the IRC and IBC since 2003. In §§2210.302 (formerly Article 21.49 §6C(b)) and 2210.307 (formerly Article 21.49 §6C) of the Insurance Code, the Texas legislature created the Advisory Committee on Building Code Specifications and Maintenance to provide advice and recommendations to the Commissioner on building requirements and maintenance in the Association's plan of operation. Section 2210.307 (formerly Article 21.49 §6C) of the Insurance Code does not limit the Advisory Committee to reviewing only those proposals that have been approved by the International Code Council, nor does it limit the Commissioner to adopting only those versions of standards that have been recommended by the Advisory Committee.

Comment: Two commenters oppose the Texas Revisions to the 2006 Editions of the IRC and the IBC because the amendments have not gone through any formal review process to determine if changes are necessary and because the Advisory Committee did not spend adequate time in deliberations.

Agency Response: The Department disagrees that the proposed amendments have not gone through a formal and adequate review process. The proposed amendments were properly considered before recommendation by the building code Advisory Committee in accordance with the statutory requirements of §2210.307 (formerly Article 21.49 §6C) of the Insurance Code. Department staff with expertise in coastal building code standards reviewed the proposed standards in accordance with §2210.307(e) (formerly Article 21.49 §6C(j)) of the Insurance Code. After consideration on July 12, 2006, the Advisory Committee recommended the adoption of the 2006 Editions of the IRC and the IBC, each as revised by the 2006 Texas Revisions, with the exception of the scope of the area to which §R325 of the Texas Revisions to the 2006 Edition of the IRC and §1716 of the Texas Revisions to the 2006 Edition of the IBC would apply. Additionally, in accordance with §2210.307(f) (formerly Article 21.49 §6C(k)) of the Insurance Code, as time allowed, interested persons' views were presented on proposals for change in applicable standards and procedures included on the Advisory Committee's published agenda. Also in accordance with §2210.307(f), the Advisory Committee considered each comment presented in acting on the disposition of each proposal. Further, in accordance with §2210.307(h) (formerly Article 21.49 §6C) of the Insurance Code, the Commissioner's decision on the recommendations of the Advisory Committee was considered in a subsequent rulemaking hearing.

In accordance with §2001.004(2) of the Government Code, the text of the rule was made available for public inspection, and in accordance with §2001.007(a) of the Government Code, the text of the rule was made available on the Internet through publication in the Texas Register on January 5, 2007. In accordance with §2001.023 of the Government Code, the Department gave 30 days' notice of its intent to adopt the rule, and in accordance with §2001.029(a) of the Government Code, gave all persons a reasonable opportunity to submit data, views, or arguments, orally or in writing. To that end, written comments were allowed for 30 days after publication of the rule in the Texas Register; and a public hearing on the proposed rule was held on February 13, 2007. Additional written and oral comments were taken at that time. These proceedings are consistent with §§2210.302 (formerly Article 21.49 §6C(b)) and 2210.307 (formerly Article 21.49 §6C) of the Insurance Code and §§2001.004, 2001.007, 2001.023, and 2001.029 of the Government Code, and enabled Department staff and the Commissioner to consider fully all written and oral submissions.

5. NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS.

For: Institute for Business and Home Safety and International Code Council (ICC).

Against: Home Builders Association of Southeast Texas, Greater Houston Builders Association, Texas Association of Builders, and one individual.

6. STATUTORY AUTHORITY. The amendments and new section are adopted under Chapter 2210 (formerly Article 21.49) and §36.001 of the Insurance Code. Section 2210.151 (formerly Article 21.49 §5(c)) of the Insurance Code provides that the Commissioner of Insurance by rule shall adopt the Association's plan of operation, and §2210.153 (formerly Article 21.49 §5(c)) allows for changes to the plan of operation. Sections 2210.004 (formerly Article 21.49 §§3(f)) and 2210.251 (formerly Article 21.49 §6A(a)) of the Insurance Code require that all structures that are constructed or repaired or to which additions are made on or after January 1, 1988, to be considered insurable property for windstorm and hail insurance from the Association, must be inspected or approved by the Commissioner for compliance with the building specifications in the plan of operation. Section 2210.251 (formerly Article 21.49 §6A(a)) of the Insurance Code also requires, for geographic areas specified by the Commissioner, the Commissioner to adopt by rule the 2003 International Residential Code for one- and two-family dwellings published by the International Code Council. Section 2210.251 (formerly Article 21.49 §6A(a)) of the Insurance Code further provides that for those geographic areas specified by the Commissioner, the Commissioner by rule may adopt a subsequent edition of that code and may adopt any supplements published by the International Code Council and amendments to the code. Section 2210.252 (formerly Article 21.49 §5(m)) of the Insurance Code authorizes the Commissioner by rule to supplement the plan of operation with the structural provisions of the IRC, and to adopt a supplement published by the International Code Council or an amendment to that code. Section 2210.302 (formerly Article 21.49 §6C(b)) of the Insurance Code establishes a Windstorm Building Code Advisory Committee on Specifications and Maintenance to advise and make recommendations to the Commissioner on building requirements and maintenance in the Association's plan of operation. In addition to any other rulemaking authority granted under Chapter 2210 of the Insurance Code, §2210.308 (formerly Article 21.49 §6C(n)) of the Insurance Code gives the Commissioner the authority to adopt rules as necessary to implement Subchapter G of Chapter 2210 of the Insurance Code. Section 36.001 of the Insurance Code provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.

7. TEXT.

DIVISION 1. PLAN OF OPERATION

§5.4010. Applicable Building Code Standards in Designated Catastrophe Areas for Structures Constructed, Repaired or to Which Additions Are Made On and After January 1, 2005, and before January 1, 2008.

(a) To be eligible for catastrophe property insurance, structures located in the designated catastrophe areas specified in §5.4008 of this chapter (relating to Applicable Building Code Standards in Designated Catastrophe Areas for Structures Constructed, Repaired or to Which Additions Are Made On and After September 1, 1998, and before February 1, 2003) and which are constructed, repaired, or to which additions are made on and after January 1, 2005, and before January 1, 2008, shall comply with the 2003 Editions of the International Residential Code and the International Building Code, as each is revised by the 2003 Texas Revisions, and all of which are adopted by reference to be effective January 1, 2005. The codes are published by and available from the International Code Council, Publications, 4051 West Flossmoor Road, Country Club Hills, Illinois, 60478-5795, (Telephone: 888-422-7233), and the 2003 Texas Revisions to the 2003 Edition of the International Residential Code and the 2003 Texas Revisions to the 2003 Edition of the International Building Code are available from the Windstorm Inspections Section of the Inspections Division, Texas Department of Insurance, 333 Guadalupe, P.O. Box 149104, MC 103-3A, Austin, Texas, 78714-9104 and the Texas Department of Insurance website at www.tdi.state.tx.us. The following wind speed requirements shall apply:

(1) Areas Seaward of the Intracoastal Canal. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas which are seaward of the Intracoastal Canal and constructed, repaired, or to which additions are made on or after January 1, 2005, and before January 1, 2008, shall be designed and constructed to resist a 3-second gust of 130 miles per hour.

(2) Areas Inland of the Intracoastal Canal and Within Approximately 25 Miles of the Texas Coastline and east of the Specified Boundary Line and Certain Areas in Harris County. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas specified in subsection (b)(2)(A) and (B) of §5.4008 of this chapter and constructed, repaired, or to which additions are made on or after January 1, 2005, and before January 1, 2008, shall be designed and constructed to resist a 3-second gust of 120 miles per hour.

(3) Areas Inland and West of the Specified Boundary Line. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas specified in subsection (c) of §5.4008 of this chapter and constructed, repaired, or to which additions are made on or after January 1, 2005, and before January 1, 2008, shall be designed and constructed to resist a 3-second gust of 110 miles per hour.

(b) Repairs, alterations and additions necessary for the preservation, restoration, rehabilitation or continued use of a historic structure may be made without conformance to the requirements of subsection (a) of this section. In order for a historic structure to be exempted, at least one of the following conditions shall apply to the structure:

(1) The structure is listed or is eligible for listing on the National Register of Historic places.

(2) The structure is a Recorded Texas Historic Landmark (RTHL).

(3) The structure has been specifically designated by official action of a legally constituted municipal or county authority as having special historical or architectural significance, is at least 50 years old and is subject to the municipal or county requirements relative to construction, alteration, or repair of the structure, in order to maintain its historical designation.

§5.4011. Applicable Building Code Standards in Designated Catastrophe Areas for Structures Constructed, Repaired or to Which Additions Are Made On and After January 1, 2008.

(a) To be eligible for catastrophe property insurance, structures located in the designated catastrophe areas specified in §5.4008 of this chapter (relating to Applicable Building Code Standards in Designated Catastrophe Areas for Structures Constructed, Repaired or to Which Additions Are Made On and After September 1, 1998, and before February 1, 2003) and which are constructed, repaired, or to which additions are made on and after January 1, 2008, shall comply with the 2006 Editions of the International Residential Code and the International Building Code, as each is revised by the 2006 Texas Revisions, and all of which are adopted by reference to be effective January 1, 2008. The codes are published by and available from the International Code Council, Publications, 4051 West Flossmoor Road, Country Club Hills, Illinois, 60478-5795, (Telephone: 888-422-7233), and the 2006 Texas Revisions to the 2006 Edition of the International Residential Code and the 2006 Texas Revisions to the 2006 Edition of the International Building Code are available from the Windstorm Inspections Section of the Inspections Division, Texas Department of Insurance, 333 Guadalupe, P.O. Box 149104, MC 103-3A, Austin, Texas, 78714-9104 and on the Texas Department of Insurance website at www.tdi.state.tx.us. The following wind speed requirements shall apply:

(1) Areas Seaward of the Intracoastal Canal. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas which are seaward of the Intracoastal Canal and constructed, repaired, or to which additions are made on or after January 1, 2008, shall be designed and constructed to resist a 3-second gust of 130 miles per hour.

(2) Areas Inland of the Intracoastal Canal and Within Approximately 25 Miles of the Texas Coastline and East of the Specified Boundary Line and Certain Areas in Harris County. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas specified in subsection (b)(2)(A) and (B) of §5.4008 of this chapter and constructed, repaired, or to which additions are made on or after January 1, 2008, shall be designed and constructed to resist a 3-second gust of 120 miles per hour.

(3) Areas Inland and West of the Specified Boundary Line. To be eligible for catastrophe property insurance, structures located in designated catastrophe areas specified in subsection (c) of §5.4008 of this chapter and constructed, repaired, or to which additions are made on or after January 1, 2008, shall be designed and constructed to resist a 3-second gust of 110 miles per hour.

(b) Repairs, alterations and additions necessary for the preservation, restoration, rehabilitation or continued use of a historic structure may be made without conformance to the requirements of subsection (a) of this section. In order for a historic structure to be exempted, at least one of the following conditions shall apply to the structure:

(1) The structure is listed or is eligible for listing on the National Register of Historic places.

(2) The structure is a Recorded Texas Historic Landmark (RTHL).

(3) The structure has been specifically designated by official action of a legally constituted municipal or county authority as having special historical or architectural significance, is at least 50 years old and is subject to the municipal or county requirements relative to construction, alteration, or repair of the structure, in order to maintain its historical designation.

DIVISION 7. INSPECTIONS FOR WINDSTORM AND HAIL INSURANCE

§5.4603. Forms for Windstorm Inspections.

(a) The Texas Department of Insurance adopts by reference the following forms for use in windstorm inspection:

(1) Application for Certificate of Compliance, Form WPI-1, effective January 1, 2005;

(2) Inspection Verification, Form WPI-2-BC-1, effective January 1, 2008;

(3) Inspection Verification, Form WPI-2-BC-2, effective January 1, 2008;

(4) Inspection Verification, Form WPI-2-BC-3, effective January 1, 2008;

(5) Inspection Verification, Form WPI-2-BC-4, effective January 1, 2008;

(6) Inspection Verification, Form WPI-2-BC-5, effective January 1, 2008;

(7) Design Certification, Form WPI-2D, effective January 1, 2008;

(8) Field Form, Form WPI-7, effective January 1, 2005;

(9) Certificate of Compliance, Form WPI-8, as amended October 1, 1998.

(b) These forms are published by and available from the Texas Department of Insurance. Copies of these forms may be obtained from the Windstorm Inspections Section of the Inspections Division, Texas Department of Insurance, 333 Guadalupe, P.O. Box 149104, MC 103-3A, Austin, Texas 78714-9104 and the Texas Department of Insurance website at www.tdi.state.tx.us.



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