Subchapter G. FIRE SPRINKLER RULES

28 TAC §§34.716 and 34.726

1 INTRODUCTION. The Texas Department of Insurance proposes amendments to §34.716, concerning the inspection, test and maintenance service of certain fire protection sprinkler systems, and new §34.726, concerning the establishment of the Fire Sprinkler Advisory Council to advise the State Fire Marshal regarding practices in the fire protection sprinkler system industry and the rules necessary to implement and administer Article 5.43-3 of the Insurance Code Article 5.43-3 §6 is adopted as Insurance Code §§6003.101 and 6003.102 in the nonsubstantive revision of the Insurance Code, 80th Legislature, HB 2636, effective April 1, 2009.

The proposed amendment to §34.716 is necessary to extend the deadline from January 1, 2008, to January 1, 2009, as the date upon which an individual, performing the inspection, test and maintenance on a fire protection sprinkler system, except a system for a one- and two-family dwelling or an underground fire main, must hold an RME-General Inspector or RME-General license The proposed extension, recommended by the Texas Fire Sprinkler Contractor's Association and other registered fire sprinkler firms, is necessary because a sufficient number of individuals will not be licensed by the date currently specified in the rule The time frame of one year and nine months allowed in the initial rule proved insufficient because the third party, administering the required test to obtain the license, only offered the test four times a year in twelve locations in Texas and restricted applicants from retaking the test for six months after failure of any part Also some applicants to take the test were refused because of insufficient space at some test locations In addition the non-sprinkler sections of the test proved challenging and training classes, sponsored by the sprinkler trade association, were only recently conducted to assist the applicants to study these sections Without the proposed extension for the requirement that only individuals holding a current RME-General Inspector or RME-General license may perform the inspection, test and maintenance on certain fire protection sprinkler systems, only a few individuals will be authorized to conduct these inspections Currently, no special authorization is required The proposed extension will result in the uninterrupted regular inspection and testing of the fire sprinkler systems in buildings until a sufficient number of individuals are issued a current RME-General Inspector or RME-General license.

Proposed new §34.726 is necessary to establish a Fire Sprinkler Advisory Council pursuant to the Insurance Code Article 5.43-3, §6 and the Government Code Chapter 2110 Government Code §§2110.0012, 2110.005, and 2110.008 require state agencies to adopt rules to establish a state agency advisory council and to specify the advisory council's purpose, tasks, reporting requirements, and duration Proposed new §34.726(a) states the purpose and scope of the proposed section Proposed new §34.726(b) creates the Fire Sprinkler Advisory Council Proposed new §34.726(c) outlines the purpose and tasks of the council Proposed new §34.726(d) specifies the membership composition and terms. Proposed new §34.726(e) specifies the reporting requirements Proposed new §34.726(f) provides for a duration of eight years from the effective the date of the adoption of the new section unless abolished earlier or extended to a later date by the Commissioner of Insurance.

2 FISCAL NOTE. Paul Maldonado, State Fire Marshal, has determined that for each year of the first five years the proposed amendment to §34.716 and the proposed new §34.726 are in effect, there will be no fiscal implications to state and local governments as a result of the enforcement or administration of the proposed amendment and the new section There will be no measurable effect on local employment or the local economy as a result of this proposal.

3 PUBLIC BENEFIT/COST NOTE. Mr. Maldonado has determined that for each year of the first five years the proposed amendment to §34.716 is in effect, the anticipated public benefit will be the uninterrupted regular inspection and testing of the fire sprinkler systems in buildings that will ensure the safety and protection of the building occupants. There are no anticipated costs for persons or entities required to comply with the proposed amendment because the extension of the deadline date does not impose any additional requirement and does not require any immediate action or a change in an individual's or an entity's existing procedures.

Mr. Maldonado has determined that for each year of the first five years the proposed new §34.726 is in effect, the anticipated public benefit will be agency compliance with the Government Code Chapter 2011 regulating state agency advisory committees and the continuation of the operation of the Fire Sprinkler Advisory Council to assist the State Fire Marshal by advising on practices in the fire protection sprinkler system industry and the rules necessary to implement and administer statutes regulating fire protection sprinkler systems and by making recommendations regarding forms and procedures and registration certificates and licenses; and to assist the Commissioner of Insurance by periodically reviewing rules implementing Article 5.43-3 of the Insurance Code and recommending changes in the rules The proposed new section will also provide notice to interested parties and members of the public of the advisory council's purpose, duties, and reporting requirements There are no persons required to comply with the proposed new section because participation on the advisory committee is voluntary, and therefore, there are no costs for any person required to comply with this section Although participation on the advisory committee is voluntary, committee members who must travel to attend meetings will incur some out-of-pocket costs that will not be reimbursed by the Department These costs will vary depending on how far the member must travel to attend meetings, what type of transportation is used, whether lodging is needed, and what choice of lodging is made.

4 ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. In accordance with the Government Code §2006.002(c), the Department has determined that the proposed amendment to §34.716, relating to the extension of the deadline date to obtain a license to perform the inspection, test, and maintenance on a fire protection sprinkler system will not have an adverse economic effect on small and micro businesses because the extension of the deadline date does not impose any additional requirement and does not require any immediate action or a change in an individual's or an entity's existing procedures The Department has determined that proposed §34.726, relating to an advisory council, will not have an adverse economic effect on small and micro businesses because participation on the advisory committee is voluntary, and a representative of a small business or micro business can opt to participate or not participate based on the representative's analysis of estimated costs for travel and lodging In accordance with the Government Code §2006.002(c), the Department has, therefore, determined that the proposed amendment to §34.716 and proposed new §34.726 do not require a regulatory flexibility analysis because the proposals will not have an adverse impact on small or micro businesses.

5 TAKINGS IMPACT ASSESSMENT. The Department has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

6 REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on January 14, 2007 to Gene C. Jarmon, 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 comment must be simultaneously submitted to Paul Maldonado, State Fire Marshal, Mail Code 112-FM, Texas Department of Insurance, P.O. Box 149221, Austin, Texas 78714-9221 Any request for a public hearing should be submitted separately to the Office of the Chief Clerk before the close of the public comment period If a hearing is held, written and oral comments presented at the hearing will be considered.

7 STATUTORY AUTHORITY. The amendment to §34.716 and new §34.726 are proposed under the Government Code §§2110.005 and 2110.008 and the Insurance Code Article 5.43-3 §§6 and 3(a), and 36.001 The Government Code §2110.005 requires a state agency that is advised by an advisory committee to adopt rules that state the purpose and tasks of the committee and that describe the manner in which the committee will report to the agency Section 2110.008(b) of the Government Code provides that unless a state agency designates a different date for automatic abolition of the committee, the committee is automatically abolished on the later of September 1, 2005 or the fourth anniversary of the date of its creation Section 2110.008(a) provides that a state agency that has established an advisory committee may designate the date on which the committee will automatically be abolished, that the designation must be by rule, and that the committee may continue in existence after that date only if the agency amends the rule to provide for a different abolishment date The Insurance Code Article 5.43-3 §6 specifies the duties and composition of the advisory council, and provides that the State Firemen's and Fire Marshals' Association of Texas may, on request by the Commissioner, recommend a volunteer fire fighter for appointment to the advisory council. The Insurance Code Article 5.43-3 §3(a) authorizes the Commissioner to adopt rules as necessary to administer Article 5.43-3 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.

8 CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal:

Rule Statute

§§34.716 and 34.726 Insurance Code Article 5.43-3 and

Government Code Chapter 2110

9 TEXT.

§34.716 Installation, Maintenance, and Service.

(a) - (b) (No change.)

(c) Service, maintenance, or testing, when conducted by someone other than an owner, must be conducted by a registered firm and in compliance with the appropriate adopted standards After January 1, 2009 [ January 1, 2008], the inspection, test and maintenance service of a fire protection sprinkler system, except a one- and two-family dwelling or an underground fire main, must be performed by an individual holding a current RME-General Inspector or RME-General license A visual inspection not accompanied by service, maintenance, testing, or certification does not require a certificate of registration.

(d) - (i) (No change.)

(c) Purpose and Tasks of the Advisory Council In addition to other duties delegated by the commissioner, the purpose and tasks of the Fire Sprinkler Advisory Council are to:

(1) advise the state fire marshal regarding practices in the fire protection sprinkler system industry and the rules necessary to implement and administer Article 5.43-3 of the Insurance Code; and

(2) make recommendations to the state fire marshal regarding forms and procedures for registration certificates and licenses; and

(1) Composition Pursuant to the Insurance Code Article 5.43-3 §6 the advisory council shall be composed of seven members, as follows:

(A) three members who have been actively engaged in the management of a fire protection sprinkler system business for not less than five years preceding appointment;

(B) one member who represents the engineering section of the department's property and casualty program;

(C) one member who is a volunteer firefighter; and

(D) two members who each represent a different municipal fire department in this state.

(E) Additionally, the State Firemen's and Fire Marshals' Association of Texas may, on request by the commissioner, recommend a volunteer fire fighter for appointment to the advisory council.

(2) Terms The advisory council members shall serve at the will of the commissioner The commissioner shall replace any member who resigns from the advisory council or whose membership is otherwise terminated.

(e) Reporting Requirements for Rules After completing review of the proposed rules and developing recommended changes to the rules, or completion of any other required or delegated duties, pursuant to the Insurance Code Article 5.43-3 §6, the advisory council shall submit a report of its findings and recommendations to the commissioner.

(f) Duration The advisory council is established to operate for eight years from the effective date of the adoption of this section unless abolished earlier by the commissioner of insurance or extended to a later date by the commissioner of insurance Such abolishment or extension shall be by amendment of this section as required by the Government Code §2110.008.