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Subchapter E. Fire Extinguisher Rules §§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recommendations with the most recent versions of those standards and recommendations, deleting some standards that are outdated or incorporated into other standards.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.



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