28 TAC §§34.808, 34.809, 34.811, 34.813, 34.814, 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. Section 34.814 is adopted with changes to the text as published
in the October 31, 2003, issue of the
Texas Register
(28 TexReg 9401) due to text that was omitted in the graphic in the
proposal. Sections 34.808, 34.809, 34.811, 34.813, and 34.826 are adopted
without changes and will not be republished.
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.
§34.814.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.
Figure: 28 TAC §34.814(f)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 7, 2004.
TRD-200400109
Gene C. Jarmon
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: January 27, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 463-6327