Subchapter H. STORAGE AND SALE OF FIREWORKS

28 TAC §§34.801, 34.804, 34.806 ­ 34.808, 34.813 ­ 34.815, 34.817 34.818, 34.820, 34.828, 34.830, and 34.832

The Texas Department of Insurance proposes amendments to Subchapter H, concerning storage and sale of fireworks and license fees, by amending §§34.801, 34.804, 34.806 ­ 34.808, 34.813 ­ 34.815, 34.817, 34.818, 34.820, 34.828, and 34.830 and adding new §34.832. These proposed new and amended sections are necessary to clarify existing and establish new standards for the indoor sale of fireworks, to add provisions concerning examination fees and nonrefundable fees, and to update statutory references in the fireworks rules. The proposed standards regarding the indoor sale of fireworks are necessary for the protection, safety, and preservation of life and property. In recent years, there has been an increase in the number of retail fireworks sites in buildings other than stands, raising safety concerns expressed by local fire marshals; accordingly, there is a necessity to revise the current fireworks rules to specify requirements for these types of retail fireworks sites pursuant to the commissioner´s statutory authority to enact rules to protect the safety of lives and property and to regulate fireworks sales. Local fire officials have expressed increasing concerns to the state fire marshal's office about retail fireworks sites and their regulation. The proposed amendments regarding examination fees and nonrefundable fees are necessary to promote efficiency in the collection and servicing of fees by the department and to make the provisions consistent with statutory requirements and other rules of the department. The proposed amendments updating statutory references reflect the recodification of former Insurance Code Article 5.43-4 by the 76th Legislature, into Title 13, Occupations Code Chapter 2154, relating to Regulation of Fireworks and Fireworks Displays. The proposed amendments reflect the recodified statutes and make other general editorial and formatting changes. Proposed amendments to §§34.801, 34.804, 34.806, 34.807, 34.813, 34.814, 34.815, 34.820, 34.828, and 3 4.830 change references from the Insurance Code to the Occupations Code. In proposed §34.804 the word "exceptions" was changed to the word "exemptions." Proposed amendments to §34.808 change some definitions, add other definitions to reflect the specific requirements for retail fireworks sites other than stands, and are renumbered, as appropriate. Proposed amendments to §34.814 reflect the requirement that all fees are non-refundable except for overpayments resulting from mistakes of law or fact and further specify an initial examination fee and re-examination fee for licenses for pyrotechnic special effects operators and pyrotechnic operators.

Proposed amendments to §34.817 specify the general requirements for all retail fireworks sites, including fire extinguisher usage and other safety aspects. The proposed amendments also indicate that buildings with a certain amount of fireworks display counter space or containing over a certain number of cases of Fireworks 1.4G must comply with §34.823. The rating of fire extinguishers, the amount of square footage extinguishers must cover, and the placement of the extinguishers is also specified. The proposed changes specify where "Fireworks" and "No Smoking" signs should be located, and the section addressing consumption or possession of alcoholic beverages at a retail site is changed. The proposed amendments also address the items that may be sold in a retail site, the posting of retail permits, and the prohibition against the operation of internal combustion engines inside a retail site. Proposed subsection (q) was added concerning current sales tax permits in an effort to assist the comptroller in collecting that tax. Proposed amendments to §34.818 specify the requirements for retail fireworks stands and delete requirements for retail fireworks sites other than stands, which have been incorporated into proposed new §34.832.

Proposed new §34.832 relates to indoor sales of fireworks and sets forth requirements for items such as building construction, access to fireworks, equipment, and personnel. It further clarifies existing requirements with relevant portions of the Life Safety Code that have been adopted under §§34.301 ­ 34.304 (Standards for State Fire Marshal Inspections) pursuant to the Govt. Code §417.008. The Life Safety Code, NFPA 101, is published by and is available from the National Fire Protection Association, Quincy, Massachusetts (800-344-3555). Pursuant to the proposed rule, a fireworks sales area cannot be part of a multi-use or multi-tenant building. Customers would not be allowed to handle fireworks unless the fireworks have covered fuses or an attendant is assisting and is in constant visual contact with the customer. The new rule would not allow fireworks to be sold from a tent, a boat or a mobile vehicle. The use of extension cords, portable space heaters, trash containers, cooking equipment and ceiling heights are addressed. Requirements that must be met in order to have a valid retail sales permit are set forth in the proposed new rule.

In accord with Occupations Code §2154.054 and rules pursuant thereto, the fireworks advisory council has met and reviewed the proposed amendments and new section and has submitted its written recommendations to the commissioner to adopt the proposed amendments and new section as detailed herein. The fireworks advisory council is established by law and appointed by the commissioner and composed of five members who are representatives of the fireworks industry. It´s the responsibility of the council to make recommendations for rule development and rule changes to the commissioner.

G. Mike Davis, state fire marshal, has determined that for each year of the first five years the proposed amendments and new section are in effect, there will be an increase to the state general revenue fund of approximately $3,000 per year. The increase will be a result of amendments to §34.814(a) and (c) pertaining to examination fees and nonrefundable fees. There will be no fiscal implications for local government as a result of enforcing or administering the sections, and no effect on the local economy or local employment.

Mr. Davis has determined that for each year of the first five years the proposed amendments and new section will be in effect, the anticipated public benefit from enforcing and administering these sections is an increase in the level of safety for the indoor sale of fireworks that is necessary for the protection and preservation of life and property. There will also be more efficiency in the collection and servicing of fees by the department regarding examination fees and nonrefundable fees.

Over the past five years, an average of $1156 has been refunded yearly as a result of individuals not going forward with the application or public display permit process. With the proposed rules, fees paid will no longer be refundable except for overpayments resulting from mistakes of law or fact.

The fireworks advisory council held several meetings, which were open to the public, received comments and held discussions regarding the proposed amendments and new sections. The council considered numerous comments and discussions from a cross-section of the fireworks industry and constructed the requirements of these proposals to minimize the fiscal impact on existing fireworks firms. In analyzing the economic impact of these proposed amendments and new section, the department staff considered the advice of the fireworks advisory council; public comments made before the council; interviews with fireworks industry representatives; discussions held at local organizational meetings with members of two fireworks associations; and field inspections of fireworks sales facilities conducted by deputies of the state fire marshal's office in prior years. Based on the foregoing, the department estimated average expenses for a representative sample of fireworks retailers and also estimated the construction costs for existing retailers to come into compliance with the proposed requirements for retail fireworks sites other than stands.

Mr. Davis has determined that proposed §34.832, which consists of new language and amended portions of deleted §34.818(f), when adopted, will have a one time cost, limited to those firms choosing to sell fireworks from an indoor retail site other than a stand. The actual costs will vary considerably from site to site based on existing structural conditions. A majority of sites which are subject to the requirements of §34.832 will already be in compliance when the rule becomes effective. The estimated cost for those sites required to construct a two-hour fire rated wall is $5.31 a square foot. Fireworks retail sites with sales areas of more than 2500 square feet and having an average ceiling height of less than 12 feet may choose to limit their sales areas to less than 2500 square feet and demolish their ceilings, at an estimated cost of $7.26 per square foot, or to erect a new ceiling at an estimated cost of $17.93 per square foot. Those firms currently selling fireworks in a sales area that is part of a multi-use or multi-tenant building have the option to relocate or cease the sales of fireworks along with other merchandise, or cease the use of other portions of the building outside the fireworks sales area. It is estimated that providing the required plan of the retail fireworks site to the state fire marshal's office will cost $100 per site. Those fireworks retail sites choosing to sell only fireworks with covered fuses may elect to remove the barriers designed to prevent customers from handling the fireworks. This action is not mandatory. It is a business management decision that may permit the reduction of staff resulting in proportionate reduction in staff costs.

These estimated expenses to fireworks retailers having to comply with the proposed amendments and new section may, depending on factors such as the volume and value of fireworks sales, differ in individual cases, and TDI welcomes comments concerning these cost estimates. The assumptions on which these costs are based may change based on information received during the comment period. It is anticipated that those fireworks retailers who choose to comply with the amendments will, over a period of years, recoup their costs. For fireworks retailers already in compliance with these safety requirements, there will be no fiscal impact.

Mr. Davis has determined that the estimated costs for the proposed amendments and new section for small or micro-businesses, under Government Code §2006.002, will be proportionally equivalent to the cost to the largest businesses, based on the physical location, size and quantity of their existing fireworks retail sales sites and not on the fiscal size of the business. It is neither legal or feasible to exempt small or micro-businesses or waive compliance with the proposed rules as the purpose of the statute under which the rules are to be adopted, is necessary for the protection, safety, and preservation of life and property.

To be considered, all comments on the proposal must be submitted in writing no later than 5:00 p.m. on June 17, 2002 to Lynda H. Nesenholtz, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments must be submitted simultaneously to G. Mike Davis, State Fire Marshal, Mail Code 112-FM, Texas Department of Insurance, P.O. Box 149221, Austin, Texas 78714-9221. Requests for a public hearing should be submitted separately to the Office of the Chief Clerk.

The sections are proposed pursuant to the Occupations Code Chapter 2154 and the Insurance Code §36.001. Occupations Code §2154.052 directs the commissioner to adopt rules the commissioner considers necessary for the protection, safety, and preservation of life and property, including rules regulating: (1) the issuance of licenses and permits to persons engaged in manufacturing, selling, storing, possessing, or transporting fireworks in this state; (2) the conduct of public fireworks displays; and (3) the safe storage of Fireworks 1.3G and Fireworks 1.4G. Additionally, §2154.052(d) provides that the commissioner, in adopting a rule, may use standards recognized by federal law or regulation and standards published by a nationally recognized standards-making organization. Insurance Code §36.001 authorizes the Commissioner of Insurance to adopt rules for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by statute.

The following statutes are affected by the proposed amended and new sections: Occupations Code Chapter 2154

§34.801. Purpose. The purpose of the rules set forth in this subchapter [ these sections] is to regulate the sale, distribution, and use of certain fireworks in the interest of protecting and preserving lives and property pursuant to the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4]. These rules should be read in conjunction with Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4], for a complete understanding of the regulation of this subject matter.

§34.804. Exemptions [ Exceptions].The exemptions [ exceptions] of the Occupations Code §2154.002 [ Insurance Code, Article 5.43-4, §4], are applicable to this subchapter [ these sections].

§34.806. Restrictive Use. No license or permit holder is authorized to enforce or attempt to enforce any section of the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4], or this subchapter [ these sections].

§34.807. Administration.

(a) The State Fire Marshal is charged with the duty to administer this subchapter [ these sections], the orders of the commissioner and the enforcement of the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4].

(b) (No change.)

§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) - (13) (No change.)

(15)[ (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.

(17)[ (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.

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

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

(20)[ (19)] 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)[ (20)] License--The license issued by the state fire marshal to a person or a fireworks firm authorizing same to engage in the business.

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

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

(25)[ (23)] 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)[ (24)] Master electric switch--A manually operated device designed to interrupt the flow of electricity.

(27)[ (25)] 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)[ (26)] 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)[ (27)] Open flame--Any flame that is exposed to direct contact.

(31)[ (28)] 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.

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

(32)[ (30)] 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)[ (31)] Retail fireworks site--The structure from which Fireworks 1.4G are sold and in which Fireworks 1.4G are held pending retail sale.

(34)[ (32)] Retail stand-- A retail site which sells Fireworks 1.4G over the counter to the general public who always remain outside the structure. [ A permanent or portable structure utilized exclusively for the sale of fireworks to the general public at a retail fireworks site.]

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

(36)[ (34)] 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)[ (35)] Selling opening--An open area including the counter, through which fireworks are viewed and sold at retail.

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

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

(40)[ (38)] 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.

§34.813. Applications for Licenses and Permits.

(a) - (b) (No change.)

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

(1) - (7) (No change.)

(8) evidence of public liability insurance, as required by the Occupations Code §2154.205 [ Insurance Code, Article 5.43-4, §15];

(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) ­ (e) (No change.)

§34.814 Fees.

(a) Fees required by the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4,] and this subchapter [ these sections], 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) (No change.)

(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; and

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

(d) ­ (f) (No change.)

§34.815. Retail Permits.

(a) (No change)

(b) Retail permits may be obtained at any time of the year from any participating manufacturer, distributor, or jobber holding a valid license to do business in Texas or from the state fire marshal, and shall be signed by the applicant prior to said permit becoming effective.

(1) A retail permittee shall purchase Fireworks 1.4G only from a distributor or jobber licensed in this state.

(2) Bulk storage of Fireworks 1.4G by a retail permittee shall be in compliance with §34.823 of this title (relating to Bulk Storage of Fireworks 1.4G).

(3) Fireworks 1.4G shall be sold to the general public only at legally permitted retail fireworks sites and during the legal selling periods defined in the Occupations Code §2154.202 [ Insurance Code, Article 5.43-4, §8(a)(1) and (2)].

(4) A copy of the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4], and the fireworks rules or a condensed version thereof shall be provided to the purchaser of a retail permit by the participating licensee at the time the permit is issued. Copies of the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4], and the fireworks rules shall be made available through the State Fire Marshal's office.

(c) (No change.)

§34.817. Retail Sales General Requirements.

(a) A supervisor, 16 years of age or older, shall be on duty during all phases of operation. It shall be the responsibility of the permit holder as well as the supervisor to comply with or require compliance with the fireworks rules.

(b) A building with more than 350 linear feet of fireworks counter display or containing 500 or more cases of Fireworks 1.4G for sales or storage [ Bulk storage of Fireworks 1.4G] by a retailer shall comply with §34.823 of this title (relating to Bulk Storage of Fireworks 1.4G).

(c) Heat-sealing of packages within retail fireworks sites is prohibited.

(d) Each retail fireworks site determined to have fire danger external of the sales area shall be provided with equipment or facilities that are capable of extinguishing small exterior fires that would threaten the retail stand. Retail sales in other than a stand shall have a fire extinguisher rated not less than 2-A. An extinguisher shall be located within 75 feet walking distance from any point in the building, and each extinguisher shall cover a floor area not greater than 1000 square feet per unit of "A" rating.

(e) An unobstructed pathway to walk doors shall be maintained within the retail fireworks site [ stand] during selling operation.

(f) (No change.)

(g) Smoking shall not be permitted in the retail fireworks site [fireworks retail stands]. The presence of lighted cigars, cigarettes, or pipes within 10 feet of any site where fireworks are sold or stored [ the stand] is prohibited. "Fireworks" and "No Smoking" signs in letters not less than four inches high shall be conspicuously posted on the inside and outside of each entrance door and at several locations inside the building.

(h) The consumption or possession of alcoholic beverages in any retail fireworks site [ stands] is prohibited. No retail sales personnel inside the facility or any supervisor [ Stand operators or assistants] shall [ not] be under the influence of or consume alcoholic beverages while on duty [ operating a stand].

(i) A retail fireworks site may only sell fireworks, fireworks promotional items and accessories and those items listed in the Occupations Code §2154.002(4). The display and [ or] offer for sale , or sales of fireworks within any structure or building where any other business or any other merchandise is sold [ establishments that sell alcoholic beverages for consumption on the premises] is prohibited.

(j) A retail permit shall be required for each retail fireworks site [ stand] offering fireworks for sale during selling season and shall be posted in the sales area.

(k) (No change.)

(l) All retail fireworks sites must furnish parking off the highway.

(m) An area of at least 10 feet in width on all sides of a retail fireworks site shall be kept free of high grass, empty cardboard boxes, and [ of] trash.

(n) ­ (o) (No change.)

(p) Internal combustion engines shall not be operated inside a retail fireworks sales site.

(q) Prior to the issuance of a retail permit, the applicant must present evidence of a valid current sales tax permit issued by the comptroller of public accounts, and the sales tax permit number must be entered on the retail fireworks permit by the person issuing the permit.

§34.818. Specific Requirements for Retail Fireworks Stands [ Fireworks Retail Site Requirements for Design, Construction, and Storage]. A retail fireworks stand shall comply with the following requirements:

[ (a) Retail stand construction.]

(1) The fireworks stand in which Fireworks 1.4G are held for retail sale shall be constructed of wood, metal, masonry, or concrete, or combinations thereof.

(2) Each stand of less than 16 feet in length shall have at least one walk door, which opens outward. Stands measuring 16 feet or longer must have at least two walk doors, one in each end, which open outward.

(3) A minimum of combustible material such as posters, signs, and decorations may be used on interior walls.

(4) A minimum distance of six feet shall be maintained from the front of the customer counter to the back side of the stand.

[ (b) Electrical service, equipment, and devices.]

(5)[ (1)] Electrical service to the stand shall be installed at least eight feet above ground or buried underground according to standards acceptable to the authority having jurisdiction.

(6)[ (2)] Each stand utilizing electricity shall have a point of power interruption, either inside or outside the stand, (switch or switches) located near an exit door which interrupts all electric supply to devices and equipment located inside and on the stand.

(7)[ (3)] All electrical wiring, equipment, and devices both inside and outside the stand, shall be UL approved, be securely mounted to the structure, and be installed and maintained to prevent electrical hazards. Splices in electrical wiring servicing equipment and devices inside the stand shall be enclosed in junction boxes. Light fixtures and wiring used for illumination inside and outside of the stand shall be installed and maintained to prevent accidental contact by the general public and employees.

(8)[ (4)] Drop cords with lights, extension cords, or bare wiring [ The following] shall not be used in any manner inside a retail stand . [:]

[ (A) drop cords with lights;]

[ (B) extension cords; or]

[ (C) bare wiring.]

(9)[ (5)] In stands where generator-created power is used, the generator shall be located in an area free from grass, trash, and other flammable materials and at least 10 feet from the stand. Reserve fuel for the generator must be stored in an approved safety container and a portable fire extinguisher rated to at least 6 BC shall be provided.

(10)[ (c) Lighting and heating.] Fireworks stands shall not be illuminated or heated by any device which requires open flame or exposed heating elements. Electric heaters shall be equipped with a switching device to stop the flow of current should the heater be tipped over.

(11)[ (d) Overnight storage.] If the fireworks stand is used for the overnight storage of Fireworks 1.4G, it must be equipped with suitable locking devices to prevent unauthorized entry.

[ (e) Bulk Storage. Storage of Fireworks 1.4G by a retailer in excess of 500 cases shall comply with §34.823 of this title (relating to Bulk Storage of Fireworks 1.4G).]

[ (f) Retail sales and storage in other than retail stands.]

[ (1) Retail sale of fireworks from any site which provides general merchandise for sale to the public shall comply with the following.]

[ (A) A separate and distinct area of floor space shall be used for retail sale of fireworks.]

[ (B) This area shall be sufficiently designed so as to prevent customers from handling fireworks.]

[ (C) This area shall be attended at all times of operation and supervised by a person 16 years old, or older, or properly secured to prohibit access by the public.]

[ (D) The current retail sales permit shall be made available for inspection in the sales area.]

[ (E) Fireworks in this area shall be limited to the displayed merchandise.]

[ (2) Smoking shall be prohibited within 10 feet of the area where fireworks are sold or stored. "Fireworks" and "No Smoking" signs with letters not less than four inches in height shall be conspicuously posted.]

[ (3) Fireworks not necessary for immediate sale shall be stored in a separate and distinct area away from general merchandise. Access to the storage area shall be restricted to employees only and "No Smoking" signs shall be posted.]

[ (4) The local fire department or authority having jurisdiction shall be notified in writing as to the business location, placement of fireworks in building or structure, total amount of fireworks being stored, and time period that fireworks will be stored.]

[ (5) Trash, rubbish, and unused boxes shall be removed from the sales and storage areas daily, or as often as necessary to prevent unsafe accumulation.]

[ (6) Fireworks shall not be displayed or stored behind glass through which direct sunlight will shine on the fireworks.]

§34.820. Requirements for Manufacturing, Bulk Storage, and Magazine Facilities. All manufacturing and bulk storage facilities shall comply with the applicable provisions of the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4], and this subchapter[ these sections].

§34.828. Existing Facilities and Conditions. Existing facilities and conditions outlined in this section [ below] which do not comply with the Occupations Code Chapter 2154 [ Insurance Code, Article 5.43-4,] and this subchapter[ these sections] shall come into compliance within the following time periods after the effective date of this subchapter[ these sections]:

(1) manufacturing facilities--five years;

(2) bulk storage facilities--three years; and

(3) individuals applying for a pyrotechnic operator license before September 1, 1986, may be issued a license if they otherwise qualify and have passed the required examination, but do not comply with the supervisory requirement of §34.811(e)(1) of this title (relating to Requirements, Pyrotechnic Operator License).

§34.830. Savings Clause. Each disciplinary action by the Texas Department of Insurance taken against a person or organization licensed or permitted under Occupations Code Chapter 2154 [ Article 5.43-4, Texas Insurance Code], shall be taken in accordance with the statutory law, regulations and orders of the commissioner of insurance or state fire marshal in effect at the time of the regulated action for which the disciplinary action is taken.

§34.832. Specific Requirements for Retail Fireworks Sites Other Than Stands.

Indoor retail fireworks sites shall comply with the following requirements:

(1) The retail fireworks sales building shall be a free standing durable structure with only one story of space accessible to the public. It shall not be a tent, boat, or mobile vehicle. The fireworks sales building shall be a minimum distance of 60 feet from any other building unless the building is used for the sales or storage of fireworks, had a retail firework permit in effect on July 1, 2001 and has a one-hour fire rated exterior wall. A building may be located between 10 to 60 feet of another building so long as its exterior wall has a one-hour or more fire resistance rating. A building may be located less than 10 feet from another building as long as its exterior wall has a two-hour or more fire resistance rating. An office area used for the operation of the site, separated by a one hour fire rated wall from the fireworks sales or storage area, may be exempt from the distance requirements after it is reported to and reviewed by the state fire marshal. Subsequent construction by adjacent property owners or public authorities shall not subject licensee or permittee to a distance regulation violation under this section, provided existing facilities are not enlarged or expanded after the subsequent construction. The fireworks sales area shall not be part of a multi-use or multi-tenant building.

(2) Fireworks sales display areas shall be sufficiently designed so as to prevent customers from handling fireworks, unless the fireworks have a covered fuse, or an attendant is assisting and in constant visual contact with the customer. Sales display areas with fireworks that do not have a covered fuse must include a continuous durable restraint around displayed fireworks separating the customers from all merchandise. The height, weight, and stability of the restraint must be designed to prevent individuals from penetrating the barrier.

(3) Fireworks in the sales area shall be limited to the displayed merchandise unless stored in closed cardboard boxes not accessible to the public.

(4) Access to fireworks when stored in a separate and distinct area away from general fireworks sales shall be restricted to employees only and "No Smoking" signs shall be posted inside.

(5) The local fire department and the county fire marshal, if one is appointed or elected in that county, shall be notified in writing, postmarked or faxed on or before June 14 of each year, as to the business location, placement of fireworks in building or structure, maximum amount of fireworks in the building, and time period that fireworks will be stored or sold.

(6) Trash, rubbish, and unused boxes, except for small quantities stored in an orderly manner for reuse, shall be removed from the sales, storage and adjacent areas daily, or as often as necessary to prevent unsafe accumulation.

(7) Fireworks shall not be displayed or stored behind glass through which direct sunlight will shine on the fireworks.

(8) Extension cords shall not be located where the general public could walk over them. An extension cord may be used to extend power to a single appliance or single power strip. An extension cord providing power to a power strip shall be of the same or greater wire gauge. Power strips used for multiple appliances must contain an internal circuit breaker. Extension cords and power strips shall be protected from accidental damage. Flexible cords and cables shall not be used as a substitute for the fixed wiring of a structure.

(9) A supervisor, 18 years of age or older, shall be on duty during all phases of operation. All fireworks sales personnel shall be 16 years of age or older. The permit holder and the supervisor shall ensure that all sales personnel comply with this subchapter.

(10) All trash containers used by the general public shall be metal or heavy plastic and be located 10 feet from any displayed or stored fireworks.

(11) An outside electrical master switch shall be provided at each retail location.

(12) Portable space heaters shall not be permitted in retail or storage areas.

(13) A retail sales permit, for other than a retail stand, shall not be valid until a plan is on file at the state fire marshal´s office showing the following:

(A) the address or location of the site;

(B) the name of the person to whom the permit is issued;

(C) the outline and length of all building exterior walls;

(D) the floor area, location and dimensions used for fireworks sales;

(E) the floor area, location and dimensions used for fireworks storage outside the sales area;

(F) the floor area, location and dimensions used for other than fireworks sales and storage;

(G) the general location, description and distances from the exterior walls to all buildings, fireworks storage magazines, highways, and equipment for storage or dispensing of flammable liquids or compressed gas;

(H) the location of the master electrical cut-off switch;

(I) the location and width of all building doors and paths of egress; and

(J) the maximum estimated number of cases to be stored or displayed for sale in the site.

(14) Cooking equipment shall not be used within rooms used for fireworks sales or storage;

(15) Customers shall not handle fireworks that do not have a covered fuse, within the retail fireworks site, unless in constant visual contact and attended by an adjacent sales person.

(16) All fireworks retail sites with a sales area more than 2500 square feet, shall have a minimum average ceiling height of 12 feet. The sales area is the total square feet of floor area used to sell or store fireworks in an indoor retail fireworks site. Each sales area may be separated from another sales area by a fire barrier having a resistance rating of not less than one hour, with all openings therein protected by a 3/4 hour fire protection-rated self closing fire doors.

(17) An indoor retail fireworks site shall comply with the mercantile occupancy requirements of the standards adopted in §34.303 of this title (relating to Applicability of Rules). This standard, NFPA 101, Life Safety Code, is published by and is available from the National Fire Protection Association, Quincy, Massachusetts, 800-344-3555.