Subchapter H. Storage and Sales of Fireworks

28 TAC §§34.808, 34.809, 34.811, 34.813, 34.814 and 34.826

The Commissioner of Insurance adopts amendments to §§34.808, 34.809, 34.811, 34.813, 34.814 and 34.826 concerning the storage and sale of fireworks. The amended sections are adopted with changes to the proposed text as published in the October 31, 2003 issue of the Texas Register (28 TexReg 9401) Section 34.814 is adopted with changes due to text that was omitted in the graphic in the proposal.

The amendments are necessary to implement legislation enacted by the 78th Legislature in Senate Bill (SB) 693. SB 693 amends Chapter 2154, Occupations Code, by incorporating National Fire Protection Association (NFPA) standards that set forth standards and procedures to be applied to the use of flame effects and pyrotechnics. These national standards mandate safeguards including requiring complete operational fire-sprinkler systems or personnel to implement standby fire watch, requiring the promoters of the display to provide the local authority with jurisdiction a copy of the display plan; requiring the promoter to notify the display audience of the sprinkler alarm system, that pyrotechnics or flame effects will be used, and where the fire exits are located. Additionally, the NFPA standards require that at least one pyrotechnic special effects licensee and one flame effects operator licensee be present on-site for the duration of the event to ensure compliance with the standards. With the new requirement to use licensed flame effects operators, who must pass a written flame effects examination with at least a grade of 70% to be licensed, displays will be performed by individuals with a greater knowledge in the use of flame effects.

The amendments to §§34.808, 34.809, 34.811, 34.813, 34.814 and 34.826 incorporate NFPA 160 and 1126 Standards for Use of Pyrotechnics Before a Proximate Audience and Standards for Flame Effects Before an Audience, respectively.

The amendment to §34.808 adds the definition of flame effects operator to the section. The amendment to §34.809 requires that a flame effects operator be licensed by the state fire marshal. The title and content of §34.811 are amended to add flame effects operator to the list of license applicants who are required to take a written examination and any other tests or demonstrations deemed necessary by the state fire marshal. The amendment to §34.813 states that when an application for a permit to use flame effects or pyrotechnics is required by §2154.253, Occupations Code, the application must be on a form provided by the state fire marshal and include the specified information required by NFPA 160 and 1126. The amendment to §34.814 sets forth the fees associated with a flame effects operator license including initial fee, renewal fee, initial examination fee and reexamination fee. This section also includes fees associated with expired flame effects operator licenses. The amendments to the title of §34.826 clarify that the section addresses pyrotechnic displays and includes flame effects. The amendment to §34.826(b) contains grammatical changes. New §34.826(h) sets forth criteria for preparing and conducting flame effects.

No comments were received.

The sections are adopted pursuant to the Occupations Code §§2154.052, 2154.156, 2154.253 and the Insurance Code §36.001. Occupations Code §2154.052 allows the commissioner to adopt and the fire marshal to administer rules that the commissioner considers necessary for the protection, safety, and preservation of life and property, including rules regulating the issuance of licenses and permits to persons engaged in manufacturing, selling, storing, possessing, or transporting fireworks, and the commissioner may use standards published by a nationally recognized standards-making organization. Section 2154.156 requires an individual be licensed as a flame effects operator if he assembles, conducts, or supervises flame effects under §2154.253. Section 2154.253 mandates compliance with NFPA safety standards for the use of flame effects or pyrotechnics for entertainment, exhibition, demonstration, or simulation before an assembly of 50 people of more, except for public safety demonstrations. Insurance Code §36.001 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.

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

(1) Acceptor building--A building which is exposed to embers and debris emitted from a donor building.

(2) Agricultural, industrial, or wildlife control permits--Permits authorizing the holder to use Fireworks 1.3G for specified purposes in these business activities.

(3) Bare wiring--Any electrical cable or cord any part of which has the insulating cover broken or removed, exposing bare wire.

(4) Barricade--A natural or artificial barrier that will effectively screen a magazine, building, railway, or highway from the effects of an explosion in a magazine or building containing explosives. It shall be of such height that a straight line from the top of any side wall of a building, or magazine containing explosives to the eave line of any magazine, or building, or to a point 12 feet above the center of a railway or highway, will pass through such natural or artificial barrier.

(5) Barricade, artificial--An artificial mound or revetted wall of earth of a minimum thickness of one foot.

(6) Barricade, natural--Natural features of ground, such as hills, or timber of sufficient density that the surrounding exposures that require protection cannot be seen from the magazine or building containing explosives when the trees are bare of leaves.

(7) Barricade, screen type--Any of several barriers for containing embers and debris from fires and deflagrations in process buildings that could cause fires and explosions in other buildings. Screen type barricades shall be constructed of metal roofing, inch or 1/2 inch mesh screen or equivalent material. A screen type barricade extends from the floor level of the donor building to such height that a straight line from the top of any side wall of the donor building to the eave line of the acceptor building will go through the screen at a point not less than five feet from the top of the screen. The top five feet of the screen are inclined at an angle of between 30 and 45 degrees, toward the donor building.

(8) Breakaway construction--A general term which applies to the principle of purposely providing a weak wall so that the explosive effects can be directed and minimized. The term "weak wall" as used in these sections refers to a weak wall and roof, or weak roof. The term "weak wall" is used in a relative sense as compared to the construction of the entire building. The design strength of the weak wall will vary as to the building construction, as well as to the type and quantity of explosive or pyrotechnic materials in the building. The materials used for weak wall construction are usually light gauge metal, plywood, hardboard, or equivalent lightweight material, and the material is purposely selected to minimize the danger from flying missiles. Method of attachment of the weak wall shall be such as to aid the relief of blast pressure and fireball.

(9) Bulk storage, Fireworks 1.4G--The storage of 500 or more cases of Fireworks 1.4G.

(10) Business--The manufacturing, importing, distributing, jobbing, retailing of permissible fireworks, acting as a pyrotechnic operator, the conducting of multiple public fireworks displays, using fireworks for agricultural, wildlife, or industrial purposes.

(11) Buyer--Any person or group of persons offering an agreed upon sum of money or other considerations to a sales person for fireworks.

(12) CFR--The Code of Federal Regulations, a codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. The Code is divided into 50 titles. The titles are divided into chapters, which are further subdivided into parts.

(13) Commissioner--The Commissioner of Insurance.

(14) Donor building--A process building from which embers and burning debris are emitted during a fire.

(15) DOT--The United States Department of Transportation.

(16) Fireworks plant--All lands, and buildings thereon, used for or in connection with the manufacture or processing of fireworks. It includes storage facilities used in connection with plant operation.

(17) Firm--A person, partnership, corporation, or association.

(18) Flame effects operator--An individual who, by experience, training, or examination, has demonstrated the skill and ability to safely assemble, conduct, or supervise flame effects in accordance with §2154.253, Occupations Code.

( 19) Generator--Any device driven by an engine and powered by gasoline or other fuels to generate electricity for use in a retail fireworks stand.

(2 0) Highway--The paved surface, or where unpaved, the edge of a graded or maintained public street, public alley, or public road.

(21) Indoor retail fireworks site--A retail fireworks site other than a retail stand which sells Fireworks 1.4G from a building or structure.

(22) License--The license issued by the state fire marshal to a person or a fireworks firm authorizing same to engage in the business.

(23) Licensed firm--A person, partnership, corporation, or association holding a current license.

(24) Magazine--Any building or structure, other than a manufacturing building, used for storage of Fireworks 1.3G.

(25) Manufacturing--The preparation of fireworks mixes and the charging and construction of all unfinished fireworks, except pyrotechnic display items made on site by qualified personnel for immediate use when such operation is otherwise lawful.

(26) Master electric switch--A manually operated device designed to interrupt the flow of electricity.

(27) Mixing building--A manufacturer's building used for mixing and blending pyrotechnic composition, excluding wet sparkler mixes.

(28) Multiple public display permit--A permit issued for the purpose of conducting multiple public displays at a single approved location.

(29) Nonprocess building--Office buildings, warehouses, and other fireworks plant buildings where no explosive compositions are processed or stored. A finished firework is not considered an explosive composition.

(30) Open flame--Any flame that is exposed to direct contact.

(31) Process building--A manufacturer's mixing building or any building in which pyrotechnic or explosive composition is pressed or otherwise prepared for finishing and assembling.

(32) Public display permit--A permit authorizing the holder to conduct a public fireworks display using Fireworks 1.3G, on a single occasion, at a designated location and during a designated time period.

(33) Retail fireworks site--The structure from which Fireworks 1.4G are sold and in which Fireworks 1.4G are held pending retail sale.

(34) Retail stand--A retail site which sells Fireworks 1.4G over the counter to the general public who always remain outside the structure.

(35) Safety container--A container especially designed, tested, and approved for the storage of flammable liquids.

(36) School--Any inhabited building used as a classroom or dormitory for a public or private primary or secondary school, or institution of higher education.

(37) Selling opening--An open area including the counter, through which fireworks are viewed and sold at retail.

(38) Storage facility--Any building, structure, or facility in which finished Fireworks 1.4G are stored, but in which no manufacturing is performed.

(39) Supervisor--A person 16 years or older who is responsible for the retail fireworks site during operating hours.

(40) Walk door--An opening through which retail stand attendants can freely move and which can be secured to keep the public from the interior of the stand.

§34.809. General Requirements, Licenses and Permits.

(a) Each firm or person engaged in the manufacture, transportation, storage, wholesale or retail sales of fireworks, public displays utilizing Fireworks 1.3G, pyrotechnic special effects operators, flame effects operators, and pyrotechnic operators shall have an applicable license or permit issued by the state fire marshal.

(1) Licenses by type:

(A) distributor;

(B) jobber;

(C) manufacturer;

(D) pyrotechnic operator;

(E) pyrotechnic special effects operator, and

(F) flame effects operator .

(2) Permits by type:

(A) retailer;

(B) single public display;

(C) agricultural;

(D) industrial;

(E) wildlife control; and

(F) multiple public display.

(b) Each license or permit shall indicate the act or acts authorized.

(c) All required licenses and permits shall be made available for inspection at the facility for which it was issued. The original permit shall be posted at all retail locations for which such permit was issued.

(d) License and permit holders shall take every reasonable precaution to protect their license or permit documents from loss, theft, defacement, destruction, or unauthorized duplication or use. Unauthorized use or duplication shall be reported immediately to the state fire marshal.

(e) All holders of licenses or permits who bulk store fireworks shall have storage and other facilities which conform to these sections.

(f) Each licensee or permittee shall notify the state fire marshal of every location where storage or manufacturing facilities are maintained in Texas .

(g) A specific business location shall be maintained by each licensee or permittee which shall be indicated on the license or permit document.

(h) A person engaging in the business using or storing Fireworks 1.3G must obtain a federal license or permit if required by Title XI, Regulation of Explosives of the Crime Control Act (18 United States Code, Chapter 40).

(i) Licensees and permittees shall have adequate storage facilities which comply with appropriate provisions of §34.822 and §34.823 of this title (relating to Storage of Black Powder and Fireworks 1.3G at Other Than Display Sites; Bulk Storage of Fireworks 1.4G).

(j) Licensees and permittees shall comply with the applicable transportation requirements of §34.825 of this title (relating to Distribution and Transportation).

§34.811. Requirements, Pyrotechnic Operator License, Pyrotechnic Special Effects Operator License, and Flame Effects Operator License.

(a) Applicants for a pyrotechnic operator license, pyrotechnic special effects operator license or flame effects operator license, shall take a written examination and obtain at least a passing grade of 70%. Written examinations may be supplemented by practical tests or demonstrations deemed necessary to determine the applicant's knowledge and ability. The content, type, frequency, and location of the examinations shall be set by the state fire marshal.

(b) Applicants who fail may file an application and take a reexamination.

(c) The state fire marshal may waive an examination requirement for an applicant with a valid license from another state having license requirements substantially equivalent to those of this state.

(d) A licensee whose license has been expired for two years or longer and makes application for a new license must pass another examination.

(e) A pyrotechnic operator license shall not be issued to any person who fails to meet subsection (a) of this section and the following:

(1) assisted in conducting at least five permitted or licensed public displays in the State of Texas under the direct supervision of and verified in writing by a pyrotechnic operator licensed in Texas;

(2) be at least 21 years of age.

(f) The pocket license document issued along with the regular license document is for identification purposes only and must be carried by the licensee when engaged in the business.

§34.813. Applications for Licenses and Permits.

(a) Applications for a license or permit to engage in the business, other than retail permits, shall be on forms provided by the state fire marshal, and shall be accompanied by the appropriate fee and documentation as may be required.

(b) Applications must be signed by the sole proprietor, by each partner of a partnership, or by an officer of a corporation or association. Applications from foreign and out of state corporations shall be accompanied by evidence of authority to conduct business in this state granted by the Texas secretary of state and where applicable, the applicant shall evidence compliance with the Assumed Business or Professional Name Act, Texas Business and Commerce Code, Chapter 36.

(c) Applications for a public display permit shall include the following information:

(1) the name, address, and telephone number of the applicant;

(2) a copy of the site inspection report from the fire prevention officer;

(3) the location or alternate location for the display;

(4) the name and license number of the pyrotechnic operator who is to supervise the display;

(5) the size and estimated number of fireworks to be discharged, the number of set pieces, and other items;

(6) the manner and place of storage of such fireworks prior to and during the display;

(7) a diagram of the grounds on which the display is to be held indicating the:

(A) area meeting appropriate distance regulations which outlines the parameters within which the particular site may be adjusted on the day of the proposed display to address safety concerns or wind changes from which fireworks will be discharged;

(B) distance from exposure to discharge point;

(C) distance from spectators to discharge point; and

(D) method of spectator restraint;

(8) evidence of public liability insurance, as required by the Occupations Code §2154.205;

(9) the name and license number of the manufacturer or distributor licensed in Texas who is to supply the fireworks; and

(10) applications for a display permit shall include the date, time, and the alternate date and time of the display.

(d) A completed application for a public display permit shall be received by the state fire marshal before the display is to be conducted. A facsimile or other photocopy of the application received by the state fire marshal during normal working hours prior to the date of the display and determined to be in compliance with the provisions of this section, along with the appropriate fee, shall be acceptable for purposes of this section. An applicant issued a permit under the facsimile provisions of this section shall maintain original documentation of the application for a period of one year and shall provide such original materials to the state fire marshal on request.

(e) An additional public display permit shall be required for each site separated from the permitted site by over 1,000 feet measured horizontally.

(f) When an application for a permit is required by the Occupations Code §2154.253 for the use of flame effects or pyrotechnics before an assembly of fifty people or more and is submitted to the state fire marshal, as the authority having jurisdiction because the political subdivision has no fire marshal, local fire protection district, or emergency services district, the application shall be on the form provided by the state fire marshal and include the following information:

(1) the name, address, and telephone number of the applicant;

(2) the date, time, and the alternate date and time of the event;

(3) the location or alternate location for the event;

(4) the names and license numbers of the pyrotechnic operator and the flame effects operator who will be on-site at all times and who will supervise the event;

(5) the plan and information required by NFPA 160 and NFPA 1126;

(6) evidence of general liability insurance, as required by the Occupations Code §2154.207;

(7) name and employer of person who will give verbal instruction regarding the location and use of available exits and information on the building fire protection system as required by §2154.253, Occupations Code; and

(8) whether the building contains a complete operational sprinkler system or personnel that will implement a stand-by fire watch.

§34.814. Fees.

(a) Fees required by the Occupations Code Chapter 2154 and this subchapter, shall be paid by cash, money order, or check. Money orders and checks shall be made payable to the Texas Department of Insurance. Except for overpayments resulting from mistakes of law or fact, or credits for unused retail fireworks permits, all fees are nonrefundable and non-transferable.

(b) Fees shall be paid at the Office of the State Fire Marshal in Austin , or mailed to an address specified by the state fire marshal. Retail permits may also be obtained through participating licensed firms. See §34.815 of this title (relating to Retail Permits).

(c) Fees shall be as follows:

(1) manufacturer license:

(A) initial fee $1,000;

(B) renewal fee (prior to expiration) $1,000;

(2) distributor license:

(A) initial fee $1,500;

(B) renewal fee (prior to expiration) $1,500;

(3) jobber license:

(A) initial fee $1,000;

(B) renewal fee (prior to expiration) $1,000;

(4) pyrotechnic special effects operator license:

(A) initial fee $25;

(B) renewal fee (prior to expiration) $25;

(C) initial examination fee $20;

(D) reexamination fee $20;

(5) pyrotechnic operator license:

(A) initial fee $25;

(B) renewal fee (prior to expiration) $25;

(C) initial examination fee $20;

(D) reexamination fee $20;

(6) multiple public display permit:

(A) initial fee $400;

(B) renewal fee (prior to expiration) $400;

(7) retail permit $20;

(8) single public display permit $50;

(9) agricultural, industrial, and wildlife control permits $10; and

(10) flame effects operator:

(A) initial fee $25;

(B) renewal fee (prior to expiration) $25;

(C) initial examination fee $20;

(D) reexamination fee $20 .

(d) A renewal application for a license deposited with the United States Postal Service is deemed to be timely filed when its envelope bears a legible postmark on or before the expiration date of the license being renewed. Any renewal application postmarked after the expiration date must be accompanied by the renewal fee and the appropriate late fee.

(e) Holders of licenses which have been expired for less than two years cannot be issued new licenses.

(f) Late fees are as follows.

§34.826. Preparing and Conducting Public Pyrotechnic Displays and Flame Effects.

(a) Storage. Public display fireworks may be stored temporarily for a period not to exceed 30 days prior to display date in a locked area, in regular 1.3G shipping cartons, not accessible by the general public, and in a location approved by the local fire prevention officer.

(b) Sobriety. Licensed operators or assistants shall not be under the influence of or consume alcoholic beverages or controlled substances during the public display.

(c) Public display criteria. Public displays shall be conducted in accordance with the provisions of the National Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 1995 Edition, except as modified by paragraphs (1) through (3) of this subsection. The Appendix to NFPA 1123 is not considered a part of the requirements of NFPA 1123 and should be used for informational purposes only.

(1) Equivalent material. High density polyethylene (HDPE) pipe shall be a permissible equivalent material for mortars if of sufficient strength and durability to fire aerial shells safely.

(2) Equivalent distance. The separation distance of NFPA 1123 paragraph 2-3.3.3 between mortars, buried in the ground or in a trough, shall not apply to a mortar where the mortar is 6 inches (150 mm) in diameter or less, constructed of high density polyethylene (HDPE), and shells are fired using electrical ignition.

(3) Equivalent distance. The separation distance of NFPA 1123, paragraph 2-3.3.3.2 between a mortar and the wall of a trough shall not apply to a mortar where the mortar is 6 inches (150 mm) in diameter or less and constructed of high density polyethylene (HDPE), shells are fired using electrical ignition and the adjacent trough wall is braced with sufficient strength and durability to safely fire the shells. The trough wall bracing and support shall meet or exceed the following:

(A) two exterior horizontal braces, one along the bottom of the trough, and a top brace at a distance above the bottom brace that is at least one half the length of the shortest mortar in the trough, but not exceeding its top, where bracing consists of angle iron, with a minimum dimension of one and one half inch by one and one half inch by three sixteenths of an inch, or other shaped steel of equivalent strength;

(B) a vertical brace attached between the bottom and top brace spaced no greater than four feet on center along the length of the trough, where the bracing consists of angle iron, with a minimum dimension of one and one half inch by one and one half inch by three sixteenths of an inch, or other shaped steel of equivalent strength; and

(C) a traverse support between the two walls of the trough, consisting of not less than three eighths of an inch threaded rod or equivalent material, located approximately half way up the side walls and located at least every four feet on center along the length of the trough.

(d) Firing mortars. All firing shall be done upon order or signal of the licensed pyrotechnic operator directing the public display.

(e) Public display safety precautions.

(1) A display must be conducted in accordance with all local regulations and conditions prescribed by the fire prevention officer at the time of the site inspection.

(2) During the display, at least one approved Class A type 2 1/2 gallon fire extinguisher or charged garden hose connected to a water line or equivalent means of fire protection shall be provided.

(f) Proximate audience display criteria. Public displays before a proximate audience shall be conducted in accordance with the provisions of the National Fire Protection Association (NFPA) 1126, Standards for the Use of Pyrotechnics Before a Proximate Audience, 1996 Edition. Public displays conducted in accordance with this section shall include pyrotechnic devices, including 1.3G, 1.4G, and 1.4S, as defined in NFPA 1126, and individuals conducting such displays shall be regulated by the provisions of this subchapter as pyrotechnic operators.

(g) Testing. Testing of fireworks and components of fireworks intended for public displays shall be performed in an area set aside for that purpose and located a safe distance from any plant building or other structure. Such testing shall be permitted by a licensed manufacturer, or licensed distributor, conducted under the direct on-site supervision of a licensed pyrotechnic operator, and no public display permit is required.

(h) Flame effects criteria. The use of flame effects before an assembly of 50 people or more shall be conducted in accordance with the provisions of the National Fire Protection Association (NFPA) 160, Standards for Flame Effects Before an Audience, 2001 Edition.