28 TAC §§34.501, 34.506 - 34.509, 34.514, 34.515, 34.517, 34.523
The Texas Department of Insurance proposes amendments to §§34.501,
34.506-34.509, 34.514, 34.515, 34.517, and 34.523, concerning fire extinguisher
rules and license fees. Amendments to §§34.507, 34.514 and 34.515
are necessary to reflect the most recent industry standards and to improve
the processing of applications. Proposed amendments to §§34.501,
34.506-34.509, 34.515, 34.517, and 34.523 are necessary, in part, to implement
legislation enacted by the 75th Legislature in SB 371. SB 371 transferred
the operations of the state fire marshal and all of the powers, duties, rights,
obligations, contracts, records, personnel, property, funds, and unspent appropriations
of the Texas Commission on Fire Protection with respect to the administration
of Article 5.43-1 of the Insurance Code from the Texas Commission on Fire
Protection to the Texas Department of Insurance, effective September 1, 1997.
Consequently, the Texas Department of Insurance, through the state fire marshal,
now regulates portable fire extinguishers and fixed fire extinguisher systems.
Provisions in the fire extinguisher rules referring to the Texas Commission
on Fire Protection are proposed to be amended to reflect the transfer of authority
from that commission to the commissioner of insurance. Section 34.507, which
adopts by reference minimum standards and recommendations of the National
Fire Protection Association (NFPA), is proposed to be amended to replace some
of the currently adopted standards and recommendations with the most recent
versions of those standards and recommendations, deleting some standards that
are outdated or incorporated into other standards. The use of the most recent
NFPA standards and recommendations is necessary because, as the technology
for fire extinguishers develops, the minimum industry safety standards for
their use, installation and maintenance also change. Application of the most
recent standards and recommendations results in better protection of the public
through the use of these fire extinguishing devices. Additionally, other units
of state and local government with jurisdiction over fire safety in Texas
are adopting these standards. The uniformity of standards enables both the
fire extinguisher industry and the public to know and utilize consistent standards
that are applicable in all jurisdictions. This proposal updates the standards
that clarify existing requirements, identify existing current maintenance
practices, expand existing requirements to apply to current state-of-the-art
equipment, and add maintenance procedures to verify that the required maintenance
work was performed, thus ensuring a greater level of safety to the public
that rely on the performance of these devices and systems. The updated standards
reflect the changes made by the NFPA by adding the definition, classification,
use and maintenance of class K rated fire extinguishers, adding procedures
to install a verification collar when performing maintenance on fire extinguishers
that require an internal examination or recharge, adding procedures regarding
the marking of fire extinguishers that are condemned, adding minimum criteria
for the type and calibration of pressure gauges used to hydrostatically test
fire extinguishers, and requiring fire extinguisher firms to maintain a record
of all fire extinguishers hydrostatically tested. The department has noted
certain exceptions and substitutions relating to cooking appliances that clarify
application of the standard to existing department rules and that provide
alternatives to comply with the standards based on the greater benefit to
the public. The proposed amendment to §34.515 adds a provision for non-refundable
fees except where overpayment results from mistakes of law or fact. The proposed
amendment is necessary to promote efficiency in the collection and servicing
of fees by the department and to make the rule consistent with statutory requirements
and with other rules of the department. The proposed amendments to §34.514
require that all applications be completed within 180 days from receipt by
the department. This limits the time non-refundable fees can be used for a
specific application. If the applicant has not provided all the information
required by the application within 180 days, a new application, including
fees, must be submitted. In addition, the National Institute for the Certification
in Engineering Technologies (NICET) qualification required for an extinguisher
planning (Type PL) license, is proposed to be amended in §34.514 to include
successful completion of the examination requirements for certification at
Level III for Special Hazard Suppression Systems. NICET has discontinued the
Special Hazard Systems Layout certification program and substituted a Special
Hazard Suppression Systems certification program. In addition, proposed §34.514
deletes the provision that permits a license to be renewed if the applicant
is not currently employed by a registered firm. This proposed amendment will
result in consistency with the requirements of Article 5.43-1, §5(c)
that individuals holding a license be an employee, agent, or servant of a
registered firm.
G. Mike Davis, state fire marshal, has determined that for each year of
the first five years the proposed amendments are in effect, there will be
an increase of approximately $5000 to $7000 to the state general revenue fund.
There will be no fiscal implications for local government as a result of enforcing
or administering the proposed amendments, and no effect on the local economy
or local employment.
Mr. Davis also has determined that for each year of the first five years
the proposed amendments are in effect, the anticipated public benefit from
enforcing and administering these sections is improved continuity of effective
and efficient regulation of portable fire extinguisher and fixed fire extinguisher
systems and improved and more efficient operation of the department in the
processing and monitoring of fees. Additionally, the public will be better
protected from fire as a result of the adoption and enforcement of the most
current nationally recognized standards applicable to portable fire extinguisher
and fixed fire extinguisher systems. Use of the most recent standards will
improve the quality, type and maintenance of equipment provided to the consumer
by more accurately measuring the pressure used to test fire extinguishers,
and will enable staff to verify more easily that the required maintenance
was performed on the devices. Mr. Davis, based on discussions with representatives
of the fire extinguisher industry, anticipates a cost of $.01 to $.05 for
each portable fire extinguisher on which maintenance is performed under these
new standards. In addition, each fire extinguisher firm not already utilizing
these adopted national standards would incur an initial cost of approximately
$300 to purchase a master pressure gauge and approximately $50 for each additional
pressure gauge each time they are calibrated. The estimated cost to purchase
all of the proposed updated standards is approximately $300, and since fire
extinguisher firms and persons in the fire extinguisher industry will only
need to purchase the applicable standards in their area of expertise, the
cost may actually be less. For example, approximately 35% of registered fire
extinguisher firms only sell and maintain portable fire extinguishers and
would only need to purchase one standard, which costs $25. The estimated cost
to purchase all of the updated standards will not be more than $300 and will
be the same cost for all persons and companies, including micro, small and
large businesses, who purchase the updated standards. Non-refundable fee provisions
should encourage applicants for licenses to better compile and submit applications.
Consumers should benefit from the earlier licensing of extinguisher-related
companies and individuals who are better prepared to deal with their respective
fire-related products. The cost to a fire extinguisher firm or person in the
fire extinguisher industry qualifying as a small or micro-business under 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 updated standards and related materials.
The proposed amendments may not be waived for a fire extinguisher firm or
person in the fire extinguisher industry qualifying as a small or micro-business
under Government Code §2006.001 because the use of these standards is
prescribed by statute. For the fire extinguisher industry as a whole, the
cost may actually be less for small or micro-businesses since most fire extinguisher
firms do not work in all areas of the industry and thus would not need to
purchase all of the standards. In addition, allowing lesser standards would
neither be legal nor feasible as the statute contemplates that fire extinguishers
be adequate to protect against hazards. Regarding the non-refundable fees,
there is no anticipated effect on large, small, and micro-businesses in that
all of the requirements regarding the assessment and payment of fees remain
the same. Moreover, the statute governing the fees requires the same fee amount
for all of the respective license applicants; therefore, the prescriptions
of the statute cannot be waived for small or micro-businesses.
To be considered, written comments on the proposal must be submitted no
later than 5 p.m. on July 30, 2001, 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.
A request for hearing should be submitted separately to the Chief Clerk's
Office.
The amended sections are proposed pursuant to the Insurance Code
Article 5.43-1 and §36.001. Article 5.43-1, §8 provides in pertinent
part that the department may formulate rules as may be determined essentially
necessary for the protection and preservation of life and property in controlling
the registration, licensing and examination of firms and individuals engaged
in the business of installing or servicing portable fire extinguishers or
planning, certifying, installing, or servicing fixed fire extinguisher systems.
Section 8 also provides that the department shall formulate rules controlling
the requirements for the installing or servicing of portable fire extinguishers
and the planning, certifying, installing or servicing of fixed fire extinguisher
systems. 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 as authorized by statute.
The following statute is affected by the proposed sections: Insurance Code
Article 5.43-1
§34.501.Purpose.
The purpose of this subchapter is to regulate the business of leasing,
renting, selling, installing, and servicing of portable fire extinguishers
and the planning, certifying, installing, or servicing of fixed fire extinguisher
systems and to prohibit portable fire extinguishers, fixed fire extinguisher
systems, and extinguisher equipment not labeled or listed by a testing laboratory
approved by the
commissioner
[
Texas Commission on Fire Protection
] in the interests of protecting and preserving lives and property pursuant
to the Insurance Code, Article 5.43-1.
§34.506.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Apprentice--A person to whom a permit has been issued by
the state fire marshal to perform various acts of service or installation
while under the direct supervision of a person working for the same firm and
holding a valid fire extinguisher service license to perform such acts.
(2)
Business--The planning, certifying, installing, leasing,
renting, selling, or servicing of portable fire extinguishers or fixed fire
extinguisher systems.
(3)
Certificate--The certificate of registration issued by
the state fire marshal.
(4)
Certify--To attest to the proper planning, installing,
or servicing of portables and systems by attaching a completed service tag
or other form required by a governmental authority.
(5)
Commissioner--The commissioner of insurance
[
Commission--The Texas Commission on Fire Protection
].
(6)
Department--The Texas Department of Insurance.
(7)
[
(6)
] DOT Specification Fire Extinguisher
Cylinder--All fire extinguisher cylinders manufactured, tested and stamped
with the classification number as required by the United States Department
of Transportation.
(8)
[
(7)
] DOT Nonspecification Fire
Extinguisher Cylinder--All fire extinguisher cylinders manufactured and tested
but not stamped with a classification number as required by the United States
Department of Transportation. These cylinders may be marked by a label with
the words "Meets DOT Requirements."
(9)
[
(8)
] Installation--The initial
placement of a portable or fixed fire extinguisher system or an extension
or alteration after initial placement.
(10)
[
(9)
] License--The license issued
by the state fire marshal to an employee of a registered firm.
(11)
[
(10)
] NFPA--The National Fire
Protection Association, Inc., a nationally recognized standards-making organization.
(12)
[
(11)
] NICET--National Institute
for the Certification in Engineering Technologies.
(13)
[
(12)
] Person--A natural person.
(14)
[
(13)
] Plan--To lay out, detail,
draw, calculate, devise, or arrange an assembly of detection or suppression
devices and appurtenances in accordance with either fire protection standards
adopted in this subchapter or specifications specially designed by a Texas
registered professional engineer acting solely in his professional capacity.
(15)
[
(14)
] Registered firm--A person,
partnership, corporation, or association holding a current certificate of
registration.
(16)
[
(15)
] Shop--A facility of a registered
firm where servicing, repairing, or hydrostatic testing is performed and where
parts and equipment are maintained.
(17)
[
(16)
] Test--The act of subjecting
a portable or fixed system to any procedure necessary to determine whether
it is properly installed or operates correctly.
§34.507.Adopted Standards.
The
commissioner
[
commission
] adopts by reference
in their entirety
, except as noted,
the following copyrighted standards
and recommendations as adopted in this subchapter. If a standard refers to
a provision in a specific edition of another standard, the provision is applicable
only if it does not conflict with the adopted standard shown in this section.
The standards are published by and available from the National Fire Protection
Association, Inc., (NFPA), Batterymarch Park, Quincy, Massachusetts 02269.
(1)
NFPA
10-1998
[
10-1994
], Standard
for Portable Fire Extinguishers,
except that paragraph 2-3.2 shall be
deleted and the following wording substituted: "Fire extinguishers provided
for the protection of cooking appliances that use combustible cooking media
(vegetable or animal oils and fats) shall either be listed and labeled for
Class K fires or comply with the requirements of NFPA 10-1994."
(2)
NFPA
11-1998
[
11-1994
], Standard
for Low Expansion Foam and Combined Agent Systems.
(3)
NFPA
11A-1999
[
11A-1994
], Standard
for Medium and High Expansion Foam Systems.
[(4)
NFPA 11C-1995, Standard for Mobile Foam
Apparatus.]
(4)
[
(5)
] NFPA
12-2000
[
12 - 1993
], Standard on Carbon Dioxide Extinguishing Systems.
(5)
[
(6)
] NFPA
12A-1997
[
12A-1992
], Standard on Halon 1301 Fire Extinguishing Systems.
[(7)
NFPA 12B-1990, Standard on Halon 1211
Fire Extinguishing Systems.]
[(8)
NFPA 2001-1994, Standard on Clean Agent
Fire Extinguishing Systems.]
(6)
[
(9)
] NFPA
15-1996
[
15-1990
], Standard for Water Spray Fixed Systems for Fire Protection.
(7)
[
(10)
] NFPA
16-1999
[
16-1995
], Standard for the Installation of Deluge Foam-Water Sprinkler
and Foam-Water Spray Systems.
(8)
[
(11)
] NFPA
17-1998
[
17-1994
], Standard for Dry Chemical Extinguishing Systems,
except
that paragraph 7-3.2 shall only apply to new or modified installations after
July 1, 1996, in accordance with §34.517(f) of this subchapter (relating
to Installation and Service)
.
(9)
[
(12)
] NFPA
17A-1998
[
17A-1994
], Standard for Wet Chemical Extinguishing Systems
,
except that paragraph 3-1.1 shall only apply to new or modified
installations after July 1, 1996, in accordance with §34.517(f) of this
subchapter
.
(10)
[
(13)
] NFPA 18-1995, Standard on
Wetting Agents.
(11)
[
(14)
] NFPA
25-1998
[
25-1995
], Standard for the Inspection, Testing, and Maintenance
of Water-Based Fire Protection Systems.
(12)
[
(15)
] NFPA
96-1998
[
96-1994
], Standard for Ventilation Control and Fire Protection
of Commercial Cooking Operations
, except that paragraph 7-2.2 shall only
apply to new or modified installations after July 1, 1996, in accordance with §34.517(f)
of this subchapter
.
(13)
NFPA 2001-2000, Standard on Clean Agent
Fire Extinguishing Systems.
§34.508.Approved Testing Laboratories.
The
commissioner
[
commission
] approves an organization
as an approved testing laboratory which lists equipment and appurtenances
for use in compliance with standards adopted in §34.507 of this title
(relating to Adopted Standards) if the organization meets the requirements
of an approved testing laboratory in accordance with Subchapter D of this
title (relating to Testing Laboratory Rules).
§34.509.Approved Certification Organization.
The
commissioner
[
commission
] approves the National
Institute for Certification in Engineering Technologies (NICET) as a testing
standards organization for testing license applicants.
§34.514.Applications.
(a)
(No change)
(b)
Fire extinguisher licenses.
(1)
Original applications for a license from an employee of
a firm engaged in the business must be submitted on forms provided by the
state fire marshal and accompanied by all other information required by the
Insurance Code, Article 5.43-1, and this
subchapter
[
subsection
].
(2)
Applications for Type A licenses must be accompanied by
a written statement from the certificate holder (employer) certifying the
applicant's competency to install or service fixed systems which the certificate
holder is currently qualified to install or service.
(3)
Applications for Type PL licenses must be accompanied by
one of the following documents to evidence technical qualifications for a
license:
(A)
proof of registration in Texas as a professional engineer;
or
(B)
a copy of NICET's notification letter regarding the applicant's
successful completion of examination requirements for certification at Level
III for Special Hazard Systems Layout
or Special Hazard Suppression Systems
.
[(c)
Requirements for renewal. A license may
be renewed if the applicant is not currently employed by a registered firm;
however, this licensee must not engage in the business until again employed
by a registered firm.]
(c)
[
(d)
] Complete application required
for renewal. Renewal applications for certificates of registration and licenses
must be submitted on forms provided by the state fire marshal and accompanied
by all other information required by the Insurance Code, Article 5.43-1, and
this
subchapter
[
subsection
]. An application will not
be deemed complete until all required forms and documents have been received
in the state fire marshal's office.
(d)
[
(e)
] Timely filed. A license or
registration shall expire at 12:00 midnight on the date printed on the license
or registration. A renewal application and fee for license or registration
must be postmarked on or before the date of expiration to be accepted as timely.
If a renewal application is not complete but there has been no lapse in the
required insurance, the applicant shall have 30 days from the time the applicant
is notified by the state fire marshal's office of the deficiencies in the
renewal application to submit any additional requirement. If an applicant
fails to respond and correct all deficiencies in a renewal application within
the 30-day period, a late fee may be charged.
(e)
[
(f)
] Requirements for applicants
holding licenses from other states. An applicant holding a valid license in
another state who desires to obtain a Texas license through reciprocity must
submit the following documentation with the application in addition to all
other information required by the Insurance Code, Article 5.43-1, and this
subchapter:
(1)
a letter of certification from the licensing entity of
another state certifying the applicant holds a valid license in that state;
and
(2)
additional information from the state detailing material
content of any required examination used to qualify for license, including
NFPA or other standards, if applicable.
(f)
[
(g)
] Apprentice permits. Each person
employed as an apprentice by a firm engaged in the business must make application
for a permit on a form provided by the state fire marshal and accompanied
by the required fee.
(g)
Complete applications. The application
form for a license or registration must be accompanied by the required fee
and must, within 180 days of receipt by the department of the initial application,
be complete and accompanied by all other information required by the Insurance
Code Article 5.43-1 and this subchapter, or a new application must be submitted
including all applicable fees.
§34.515.Fees.
(a)
Every fee required in accordance with the provisions of
the Insurance Code, Article 5.43-1, and the sections of this subchapter must
be paid by cash, money order, or check. Money orders and checks must be made
payable to the Texas
Department of Insurance
[
Commission on
Fire Protection
].
Except for overpayments resulting from mistakes
of law or fact, all fees are non-refundable.
(b) - (e)
(No change)
§34.517.Installation and Service.
(a)
(No change)
(b)
The following requirements are applicable to all fixed
fire extinguisher systems.
(1)
Fixed systems must be planned, installed, and serviced
in compliance with the manufacturer's installation manuals and specifications
or the applicable standards adopted in this subchapter.
(2)
Upon completion of the installation of a pre-engineered
fixed fire extinguisher system, a Type A or Type PL licensee must place an
installation label on the system to certify that the system was installed
in compliance with the manufacturer's installation manuals and specifications
or standards adopted by the
commissioner
[
Texas Commission
on Fire Protection
] in this subchapter. The licensee whose signature
appears on the installation label must be present for the final test of the
system prior to certification.
(3)
Upon completion of the installation of a fixed fire extinguisher
system other than a pre-engineered system, a Type A or Type PL licensee must
place an installation label on the system to certify that the system was installed
in compliance with the manufacturer's installation manuals and specifications,
plans developed by a Type PL licensee or professional engineer, or standards
adopted by the
commissioner
[
Texas Commission on Fire Protection
] in this subchapter. The licensee whose signature appears on the installation
label must be present for the final test of the system prior to certification.
(4)
A service tag certifying the work performed must be securely
attached by the licensee to the system upon completion of servicing.
(c) - (f)
(No change)
§34.523.Savings Clause.
Each cause of action, pending litigation, matter in process before
the
commissioner
[
Texas Commission on Fire Protection
]
or the state fire marshal, or matter hereafter arising from an event occurring
prior to the time this subchapter becomes effective shall be determined in
accordance with and governed by the provisions of statutes, sections, orders,
or official interpretations in effect at the time of the occurrence of the
subject event.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 15, 2001.
TRD-200103414
Lynda Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: July 29, 2001
For further information, please call: (512) 463-6327