PART 13. TEXAS COMMISSION ON FIRE PROTECTION

CHAPTER 421. STANDARDS FOR CERTIFICATION

37 TAC §421.9

The Texas Commission on Fire Protection (the Commission) proposes amendments to Chapter 421, Standards for Certification; §421.9, concerning Designation of Fire Protection Duties. The purpose of the proposed amendment is to make grammatical corrections to the word "Commission". The proposed amendment also reflects the name change of a form that is required to be filed when an individual is no longer appointed fire suppression duties. When an employee is hired by a fire department they are required to submit a Notice of Appointment prior to assigning them to fire suppression duties. When the employee is no longer assigned fire suppression duties for that jurisdiction they must submit a Removal from Appointment form showing that they are no longer with that fire department.

Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that for the first five-year period these proposed amendments are in effect there will be no fiscal impact on state or local governments.

Mr. Soteriou has also determined that for each year of the first five years these proposed amendments are in effect the public benefit will be that the administrative staff of a fire department will have a clearer understanding of what they have to report to the Commission when an individual leaves their department. This form will enable the Commission to track this fire fighter if they transfer to another department, retire or pass on. There will be no effect to individuals required to comply with these amendments as proposed. There will be no effect on small or micro businesses.

Comments regarding these proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.

These amendments are proposed under Texas Government Code, Chapter 419, Subchapter B, Regulation and Assisting Fire Fighters and Fire Departments.

Cross reference to statute: Texas Government Code, §419.0322, Categories and Designation of Persons Performing Fire Protection Duties.

§421.9.Designation of Fire Protection Duties.

(a) (No change.)

(b) A fire department regulated by the Commission [ commission] may not designate the same person under more than one category under this section. The designation shall be made on the records of the department and the designation shall be made available for inspection by the Commission [commission] or sent to the Commission [commission] on request.

(c) A fire department regulated by the Commission [commission ] shall submit on the proper form a request to appoint fire protection personnel or part-time fire protection employees to a regulated discipline. No individual may be appointed to a discipline without approval by the Commission [commission]. Termination of fire protection personnel or part-time fire protection employees shall be reported to the Commission [commission ] on the Removal from Appointment [proper] form within 14 calendar days of the action. In the case of termination, the employing entity shall report an individual's last known home address to the Commission [commission]. A Removal from Appointment form [Notice of Termination ] may be submitted without the employee's signature.

(d) - (e) (No change.)

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 July 17, 2009.

TRD-200902940

Gary L. Warren, Sr.

Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: August 30, 2009

For further information, please call: (512) 936-3838

SUBCHAPTER B. MINIMUM STANDARDS FOR FIRE INSPECTOR CERTIFICATION

37 TAC §429.203

The Texas Commission on Fire Protection (the Commission) proposes an amendment to Chapter 429, Minimum Standards for Fire Inspectors, Subchapter B, Minimum Standards for Fire Inspector Certification, §429.203, concerning Minimum Standards for Basic Fire Inspector Certification--New Track. The purpose of the proposed amendment is to correct a typographical error. The word "Investigations" was inadvertently typed in the original submission. It should read "Inspections".

Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal impact on state or local governments.

Mr. Soteriou has also determined that for each year of the first five years the proposed amendment is in effect the public benefit will clarify the requirements for the Inspector certification. There will be no effect to individuals required to comply with the amendment as proposed. There will be no effect on small or micro businesses.

Comments regarding the proposed amendment may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.

The amendment is proposed under Texas Government Code, Chapter 419, Subchapter B, Regulation and Assisting Fire Fighters and Fire Departments.

Cross reference to statute: Texas Government Code, §419.028, Training Programs and Instructors.

§429.203.Minimum Standards for Basic Fire Inspector Certification--New Track.

In order to be certified as a basic fire inspector, an individual must:

(1) (No change.)

(2) complete a Commission-approved Basic Fire Inspector program and successfully pass the Commission examination(s) as specified in Chapter 439 of this title (relating to Examinations for Certification). An approved basic fire inspection training program shall consist of one or any combination of the following:

(A) - (B) (No change.)

(C) successful completion of the following college courses:

(i) (No change.)

(ii) Fire Prevention, three semester hours; or Fire Prevention Codes and Inspections [ Investigations], three semester hours;

(iii) - (v) (No change.)

(D) (No change.)

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 July 17, 2009.

TRD-200902941

Gary L. Warren, Sr.

Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: August 30, 2009

For further information, please call: (512) 936-3838

37 TAC §§445.1, 445.9, 445.11, 445.13, 445.15

The Texas Commission on Fire Protection (the Commission) proposes amendments to Chapter 445, Administrative Inspections and Penalties, §445.1, concerning Entity Inspections, §445.9, concerning Minor Violations, §445.11, concerning Major Violations, §445.13, concerning Disciplinary Hearings, and §445.15, concerning Judicial Enforcement. The purpose of the proposed amendments is to develop rule changes that allow the Commission to establish a risk based approach to conducting inspections, establish a reasonable time frame for opening a complaint case after finding inspection violations and adopt an enforcement matrix for assessing penalty amounts or disciplinary amounts relating to violations to agency statute and rules. These recommendations came from the Sunset Review process and have been incorporated into the Commission's enabling legislation.

Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that for the first five-year period these proposed amendments are in effect there will be no fiscal impact on state or local governments.

Mr. Soteriou has also determined that for each year of the first five years these proposed amendments are in effect the public benefit will be that, the Commission would be able to take a more strategic approach to conducting its inspections of fire departments and training providers. By using a consistent time frame for opening complaint cases, the commission would treat all regulated entities fairly, improve compliance outcomes and more accurately track its compliant cases. Adopting the matrix in rule will provide the public with the opportunity to comment on its development and provide regulated entities with ready access to the Commission's enforcement guidelines. There will be no effect to individuals required to comply with these amendments as proposed. There will be no effect on small or micro businesses.

Comments regarding these proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.

These amendments are proposed under Texas Government Code, Chapter 419, Subchapter B, Regulation and Assisting Fire Fighters and Fire Departments

Cross reference to statute: Texas Government Code, §419.027, Biennial Inspections.

§445.1.Entity Inspections.

(a) The Commission [commission] shall conduct at least biennial inspections of the entities that fall under the regulatory authority of the Commission, and may perform risk based inspections of entities the Commission determines to be at risk [commission].

(b) The purpose of these inspections shall be to promote safety and proficiency in the fire service by ensuring compliance with state law and Commission [commission] rules pertaining to minimum standards for fire protection personnel education, protective clothing, self-contained breathing apparatus, personal alert safety systems, standard operating procedures, or any other aspect of the fire service regulated by the Commission [ commission].

(c) (No change.)

§445.9.Minor Violations.

If during the course of a departmental inspection, the inspector determines the department has committed minor violations, the following procedures shall apply.

(1) The inspector shall issue a notice of minor violations [formal notice of noncompliance ] identifying the findings resulting from the compliance inspection [of fact].

(2) The department then has 30 [14] calendar days from the date the [formal] notice of minor violations [noncompliance] is received to [ correct the violations and] provide the Commission [ commission] with [proof of compliance or to provide the commission with] a written schedule of actions which will be carried out to correct the minor violations [achieve compliance]. The schedule of actions will allow necessary amounts of time for such things as obtaining items through city requisitions and bid processes, when necessary. Lack of funds is not an acceptable reason for delay.

(3) If the department fails to provide a plan for obtaining [proof of] compliance [ or a written schedule of actions] within the required time frame, a hearing may be scheduled. [14 calendar days, an administrative penalty of up to $300 per violation may be recommended by the commission staff.] If determined by the hearing process that violations occurred and were not corrected, the department may be: [the department has been compelled to submit proof of compliance or a schedule of actions for the same or similar violations within the previous five years, the administrative penalty shall be up to $600 per violation.]

[(4) In the event the department fails to achieve compliance in accordance with the agreed-upon schedule of actions, an administrative penalty of up to $600 per violation may be recommended by the commission staff unless the commission staff determines that sufficient reason exists for extending the time allowed for compliance.]

[(5) In all cases where an administrative penalty is recommended by the commission staff, the department may be granted 14 calendar days to pay the administrative penalty and come into compliance or submit a written notice of appeal.]

[(6) If the department fails to pay the administrative penalty and come into compliance within the required time frame, a hearing may be scheduled. If determined by the hearing process that violations occurred, the department may be:]

(A) allowed extra time to come into compliance;

(B) assessed appropriate penalties which may be probated and may include suspension of certificates, administrative penalties, hearing costs, and attorneys fees;

(C) required to furnish proof of compliance.

§445.11.Major Violations.

If during the course of a departmental inspection the inspector determines the department has committed major violations involving protective clothing, self-contained breathing apparatus, personal alert safety systems or breathing air, the following procedures shall apply:[.]

(1) The inspector shall issue a formal notice of noncompliance identifying the violations and the corrective measures to be taken by the department to correct the listed violations [ findings of fact].

(2) The department has 30 calendar days from the date of receipt of the formal notice of noncompliance to correct the violations, and to provide the Commission with proof of compliance or submit written notice of appeal. [An administrative penalty of up to $500 per violation may be recommended by the commission staff. If it is determined by the commission that the department has been subjected to an administrative penalty for the same or similar violations within the previous five years, the administrative penalty may be up to $1,000 per violation.]

(3) If the [The] department fails to come into compliance within the allotted time frame, an administrative penalty of up to $500 per day may be assessed from the first day of formal notice of violation for each violation. If it is determined that the department was assessed administrative penalties for the same or similar violations within the previous five years, the administrative penalty of up to $1,000 per violation may be assessed. [then has 14 calendar days from the date of the receipt of the formal notice of noncompliance to pay the administrative penalty, correct the violations, and to provide the commission with proof of compliance or submit written notice of appeal.]

(4) The [If the] department then has 30 calendar days from formal notice of administrative penalties assessed to pay the administrative penalty or submit written notice of appeal. [fails to pay the administrative penalty and come into compliance within the total 14 calendar day time frame, a hearing shall be scheduled. If determined by the hearing process that violations occurred, the department may be:]

[(A) allowed extra time to come into compliance;]

[(B) assessed appropriate penalties which may be probated and may include suspension of certificates, administrative penalties, hearing costs, and attorneys fees;]

[(C) required to furnish proof of compliance.]

(5) Upon receipt of a written appeal concerning administrative action or penalty a hearing will be scheduled. Chapter 154 of the Texas Civil Practice and Remedies Code shall be used as a procedural guide.

§445.13.Disciplinary Hearings.

A complaint case shall be opened no later than the 30th day after formal notice to the fire department, training provider or individual, concerning unresolved major violations found during an inspection. A hearing will be scheduled with the fire department, training provider or individual to determine administrative actions or penalties. The Commission shall consider the following factors when determining administrative penalties: [Upon the filing of a complaint with the commission charging a regulated entity with a violation of the Code or commission regulations as grounds for disciplinary action, the commission shall provide for a hearing of the charges. The commission's rules of practice and procedure govern disciplinary proceedings under this chapter.]

(1) compliance history;

(2) seriousness of the violation;

(3) the safety threat to the public or fire personnel;

(4) any mitigating factors; and

(5) any other factors the commission considers appropriate.

§445.15.Judicial Enforcement.

The Commission may enter a default order if a fire department or training provider fails to take action to correct a violation found during an inspection conducted under this chapter, or to request an informal settlement conference before the 61st day after the date the Commission provides to the department or provider notice requiring the department or provider to correct the violations. [If a department is found to have committed major violations of the same or similar nature on three or more occasions within the previous five years, proceedings for injunctive relief, penalties, and discipline may be instituted; provided, however, that this section shall not prohibit the commission from resorting to judicial enforcement for any violation of the Code or rules.]

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 July 17, 2009.

TRD-200902939

Gary L. Warren, Sr.

Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: August 30, 2009

For further information, please call: (512) 936-3838