28 TAC §§34.808, 34.809, 34.811, 34.813, 34.814 and 34.826
The Texas Department of Insurance proposes amendments to §§34.808, 34.809, 34.811, 34.813, 34.814 and 34.826 concerning the storage and sale of fireworks. The proposal is 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.
The proposed amendment to §34.808 adds a definition of flame effects operator to mean one who has shown the skill and ability to safely assemble, conduct, or supervise flame effects in accordance with §2154.253, Occupations Code. The proposed 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 proposed to be 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 proposed 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 proposed 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 proposed amendments to the title of §34.826 clarify that the section addresses pyrotechnic displays and includes flame effects. The proposed amendment to §34.826(b) contains grammatical changes and states that licensed operators and assistants must not be under the influence of or consume alcoholic beverages or controlled substances during public displays. The proposed new §34.826(h) sets forth criteria for preparing and conducting flame effects and states that the use of flame effects before an assembly of fifty people or more must be conducted in accordance with the provisions of the NFPA 160, Standards for Flame Effects Before an Audience, 2001 Edition.
G. Mike Davis, State Fire Marshal, has determined that for each year of the first five years the proposal will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed standards. Mr. Davis has also determined that there will be no adverse effect on local employment or the local economy.
Mr. Davis also has determined that for each year of the first five years the proposed sections are in effect, the anticipated public benefit from enforcing and administering the section will be improved and more efficient regulation of pyrotechnic displays and flame effects. Additionally, the viewing public will be better protected from potential fire and other potential perils as a result of the adoption and enforcement of the proposal which incorporates NFPA 1126 and 160, Standards for Use of Pyrotechnics Before a Proximate Audience and Standards for Flame Effects Before an Audience, respectively. In part, these national standards mandate safeguards to include 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 and shall enforce 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 level of skill and expertise in the use of flame effects.
The estimated cost to purchase the NFPA 1126 manual is $23.50 and the NFPA 160 manual is also $23.50. The flame effects operator license fee is $25, renewal fee (prior to expiration) is $25, initial examination fee is $20 and the reexamination fee is $20. If the flame effects operator allows his license to expire, renewal within 90 days of expiration is $25 for the renewal fee and $12.50 for the initial, totaling $37.50. If the flame effects operator allows his license to expire, renewal between 91 days and two years of expiration is $25 for the renewal fee and $25 for the initial, totaling $50.
The cost to a person or entity qualifying as a small or micro-business under the Government Code §2006.001 will be the same as the cost to the largest business because the cost is not dependent upon the size of the business but rather is the same price for all purchasers of the standards manuals and all applicants for flame effects operator licenses. In addition, it would neither be legal nor feasible to waive the requirements of the amendments since these standards are a matter of public safety and improve and increase efficiency of regulations of pyrotechnics and flame effects.
To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on December 1, 2003, to Gene C. Jarmon, General Counsel & 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 149104 , Austin , Texas 78714‑9104. A request for a public hearing should be submitted separately to the Office of the Chief Clerk.
The amended sections are proposed 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. Section 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.
The following statutes are affected by the proposed sections: Occupations Code §§2154.052, 2154.156 and 2154.253.
§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) - (17) (No change.)
(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)[(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)[(20)]Indoor retail fireworks site--A retail fireworks site other than a retail stand which sells Fireworks 1.4G from a building or structure.
(22)[(21)]License--The license issued by the state fire marshal to a person or a fireworks firm authorizing same to engage in the business.
(23)[(22)]Licensed firm--A person, partnership, corporation, or association holding a current license.
(24)[(23)] Magazine--Any building or structure, other than a manufacturing building, used for storage of Fireworks 1.3G.
(25)[(24)] 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)[(25)]Master electric switch--A manually operated device designed to interrupt the flow of electricity.
(27) [(26)] Mixing building--A manufacturer's building used for mixing and blending pyrotechnic composition, excluding wet sparkler mixes.
(28)[(27)] Multiple public display permit--A permit issued for the purpose of conducting multiple public displays at a single approved location.
(29)[(28)] 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) [ (29) ] Open flame--Any flame that is exposed to direct contact.
(31) [ (30) ] 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) [ (31) ] 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) [ (32) ] Retail fireworks site--The structure from which Fireworks 1.4G are sold and in which Fireworks 1.4G are held pending retail sale.
(34) [ (33) ] Retail stand--A retail site which sells Fireworks 1.4G over the counter to the general public who always remain outside the structure.
(35) [ (34) ] Safety container--A container especially designed, tested, and approved for the storage of flammable liquids.
(36) [ (35) ] 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) [ (36) ] Selling opening--An open area including the counter, through which fireworks are viewed and sold at retail.
(38) [ (37) ] Storage facility--Any building, structure, or facility in which finished Fireworks 1.4G are stored, but in which no manufacturing is performed.
(39) [ (38) ] Supervisor--A person 16 years or older who is responsible for the retail fireworks site during operating hours.
(40) [ (39) ] 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) - (C) (No change.)
(D) pyrotechnic operator; [ and ]
(E) pyrotechnic special effects operator , and [.]
(F) flame effects operator .
(2) (No change.)
(b) - (j) (No change.)
§34.811. Requirements, Pyrotechnic Operator License , [ and ] Pyrotechnic Special Effects Operator License , and Flame Effects Operator License .
(a) Applicants for a pyrotechnic operator license , [ or ] 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) - (f) (No change.)
§34.813. Applications for Licenses and Permits.
(a) - (e) (No change.)
(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) - (b) (No change.)
(c) Fees shall be as follows:
(1) - (7) (No change.)
(8) single public display permit $50; [and]
(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) - (e) (No change.)
(f) Late fees are as follows.
Expired 1 to 90 days
| ------------------------------------ | 1 Renewal Fee + | (Initial Fee) | = Total Fee |
|---|---|---|---|
| Manufacturer | $1,000.00 | $500.00 | $1,500.00 |
| Distributor | $1,500.00 | $750.00 | $2,250.00 |
| Jobber | $1,000.00 | $500.00 | $1,500.00 |
| Pyrotechnic Operator | $25.00 | $12.50 | $37.50 |
| Pyrotechnic Special Effects Operator | $25.00 | $12.50 | $37.50 |
| Flame Effects Operator | $25.00 | 12.50 | 37.50 |
Expired 91 days to 2 years
| ------------------------------------ | 1 Renewal Fee + | (Initial Fee) | = Total Fee |
|---|---|---|---|
| Manufacturer | $1,000.00 | $1,000.00 | $2,000.00 |
| Distributor | $1,500.00 | $1,500.00 | $3,000.00 |
| Jobber | $1,000.00 | $1,000.00 | $2,000.00 |
| Pyrotechnic Operator | $25.00 | $25.50 | $50.00 |
| Pyrotechnic Special Effects Operator | $25.00 | $25.00 | $50.00 |
| Flame Effects Operator | $25.00 | 25.00 | 50.00 |
§34.826. Preparing and Conducting Public Pyrotechnic Displays and Flame Effects.
(a) (No change.)
(b) Sobriety. Licensed [Pyrotechnic] operators or assistants shall not be under the influence of or consume alcoholic beverages or [and/or] controlled substances during the public display.
(c) -- (g) (No change.)
(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.