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Subchapter H. Storage and Sale of Fireworks

28 TAC §§34.801, 34.804, 34.806 ­ 34.808, 34.813 ­ 34.815, 34.817 34.818, 34.820, 34.828, 34.830, and 34.832

The Commissioner of Insurance adopts amendments to Subchapter H, concerning storage and sale of fireworks and license fees, by amending §§34.801, 34.804, 34.806 ­ 34.808, 34.813 ­ 34.815, 34.817, 34.818, 34.820, 34.828, and 34.830 and adding new §34.832. Sections 34.801, 34.804, 34.806, 34.808, 34.814, 34.815, 34.817, 34.820, 34.830 and 34.832 are adopted with changes to the proposed text as published in the May 17, 2002 issue of the Texas Register (27 TexReg 4311). Sections 34.807, 34.813, 34.818 and 34.828 are adopted without changes and will not be republished.

The new and amended sections are necessary to clarify existing and establish new standards for the indoor retail sale of fireworks, to add provisions concerning examination fees and nonrefundable fees, and to update statutory references in the fireworks rules. The amendments and new sections are necessary to revise the current fireworks rules to specify requirements for indoor retail fireworks sites pursuant to the commissioner´s statutory authority to enact rules to protect the safety of lives and property and to regulate fireworks sales. In recent years, there has been an increase in the number of retail fireworks sites in buildings other than stands, raising safety concerns expressed by local fire marshals and individuals that filed comments with the department. A hearing concerning the proposed rules was held on September 18, 2002. Proposed §34.832 generated a large amount of controversy and disagreement. Many comments were received concerning the safety of allowing customers to handle or have "hands on" access to fireworks. After considering all of the comments received from the public, the department made changes to the rules. Changes are made for clarification and are based on comments received regarding the proposal.

In accordance with Occupations Code §2154.054 and rules pursuant thereto, the fireworks advisory council has met and reviewed the amendments and new section and has submitted its written recommendations to the commissioner to adopt the proposed amendments and new section. The fireworks advisory council is established by law and appointed by the commissioner and composed of five members who are representatives of the fireworks industry. It´s the responsibility of the council to make recommendations for rule development and rule changes to the commissioner.

The amendments regarding examination fees and nonrefundable fees are necessary to promote efficiency in the collection and servicing of fees by the department and to make the provisions consistent with statutory requirements and other rules of the department. The amendments update statutory references and reflect the recodification of former Insurance Code Article 5.43-4 by the 76th Legislature, into Title 13, Occupations Code Chapter 2154, relating to Regulation of Fireworks and Fireworks Displays. Changes have been made to §§34.801, 34.804, 34.806, 34.814, 34.815, 34.820 and 34.830 to correct typographical errors. The amendments make other general editorial and formatting changes. The changes are made for clarification and are based on comments received regarding the proposal. In §34.804 the word "exceptions" is changed to the word "exemptions." The originally proposed amendments to §34.808 changed the definition of "retail stand," and added a definition for "indoor retail fireworks site" to reflect the specific requirements for retail fireworks sites other than stands. The definition for "covered fuse," which was added by the proposal has been deleted as unnecessary, since the phrase is not used in the subchapter. Amendments to §34.814 reflect the requirement that all fees are non-refundable except for overpayments resulting from mistakes of law or fact and further specify an initial examination fee and re-examination fee for licenses for pyrotechnic special effects operators and pyrotechnic operators.

The amendments to §34.817 specify the general requirements for all retail fireworks sites, including fire extinguisher usage and other safety aspects. The amendments also indicate that buildings with a certain amount of fireworks display counter space or containing over a certain number of cases of Fireworks 1.4G must comply with §34.823. The proposed text of §34.817(b) has been changed for clarification based on comments received. The rating of fire extinguishers, the amount of square footage extinguishers must cover, and the placement of the extinguishers is also specified. The changes specify where "Fireworks" and "No Smoking" signs should be located, and the section addressing consumption or possession of alcoholic beverages at a retail site is changed. The amendments also address the items that may be sold in a retail site, the posting of retail permits, and the prohibition against the operation of internal combustion engines inside a retail site. Subsection (q) addresses current sales tax permits to assist the comptroller in collecting that tax. Amendments to §34.818 specify the requirements for retail fireworks stands and delete requirements for retail fireworks sites other than stands, which is now in §34.832. Section 34.832 relates to indoor sales of fireworks and sets forth requirements for items such as building construction, access to fireworks, equipment, and personnel. It further clarifies existing requirements with relevant portions of the Life Safety Code that have been adopted under §§34.301 ­ 34.304 (Standards for State Fire Marshal Inspections).

Proposed §34.832 allowed customers to handle fireworks if the fireworks had covered fuses and an attendant was assisting and in constant visual contact with the customer. Based on the concerns expressed in comments, the section has been changed so customers will not be allowed to handle fireworks unless an attendant is directly assisting the customer. Other portions of §34.832 have changed based on comments received and for clarification purposes. Paragraph (1) of §34.832 has been deleted, and some portions of the section have been changed to clarify distance requirements for indoor retail fireworks sites. Pursuant to the rule, a fireworks sales area cannot be part of a multi-use or multi-tenant building. The rule will not allow fireworks to be sold from a tent, a boat or a mobile vehicle. The use of extension cords, portable space heaters, trash containers, cooking equipment and ceiling heights are addressed. Requirements that must be met in order to have a valid retail sales permit are set forth in the rule.

§34.801. A commenter generally agrees with the changes and feels they would do more good than harm. However, some areas with existing problems would remain in tact, and new problems would be created.

Agency Response: The department appreciates the comments.

§34.808. One commenter asks if the intent of the proposed rules was to include the word "counter" as part of the new definition for "Retail Stand" and if the new rules, which permit hands on sales, under certain situations, for an indoor retail site also applies to a retail stand as defined.

Agency Response: The definitions were used to differentiate a retail stand from an indoor retail site. The definition of a retail stand describes a retail fireworks sales facility similar to existing structures, commonly used in Texas. The building and safety requirements of these sites assume that the public remains outside the facility. Therefore, it was the intent to include the word "counter" in the definition. The proposal, which did not require a restraint to prevent customers from handling the fireworks, was exclusively written for retail sites other than stands. The intent of the proposed rules was to develop requirements for the indoor sales of fireworks without changing the current requirements for stands. The rules as adopted will no longer allow hands on, unless an attendant is directly assisting a customer.

Comment: A commenter proposes a new definition be written defining "aerial fireworks." It is assumed that this is to assist in the enforcement of the Local Government Code Subchapter C §352.051.

Agency Response: These are not comments applicable to the currently proposed rules and may be proposed to the fireworks advisory council at a later date.

§34.817. A commenter inquires whether the intent of proposed §34.817(b), which requires compliance with §34.823, relating to the bulk storage of Fireworks 1.4G, was exclusively for buildings with more that 350 linear feet of fireworks counter display.

Agency Response: The intent was to maintain the existing requirement for facilities with over 500 cases. A facility storing a total combined quantity of over 500 cases of fireworks shall comply with §34.823 whether the fireworks are in a case or on display. To assist in converting displayed fireworks into cases, it was estimated that 350 linear feet of counter display is approximately equivalent to 500 cases. Therefore if the linear feet of counter display (converted to cases) added to any additional cases stored in the building, exceeds 500 then compliance with §34.823 is required. The department agrees with the commenter and has changed §34.817(b) for clarification to reflect this fact.

§34.818. A commenter recommends writing a rule specifying the minimum walk door (exit door) width for a fireworks stand.

Agency Response: Rules for revising the regulation of the width of a walk door in a retail fireworks stand were not addressed by the proposed rules. Revisions may be proposed and considered by the fireworks advisory council at a later date. Walk doors for an indoor retail fireworks site other than a stand must follow the requirements of NFPA 101, Life Safety Code, referenced in §34.832(17).

§34.832. Proposed §34.832 generated a large amount of controversy and disagreement. Many comments were received concerning the safety of allowing customers to handle or have "hands on" access to fireworks. The majority of comments received in response to the proposal oppose §34.832 and the ability of fireworks customers to handle fireworks prior to purchase. One commenter feels that allowing the hands on sale of fireworks will lead to great tragedy. Some commenters have concerns about individuals under the age of 18 handling fireworks. One commenter has particular concerns about small children that come in with parents. Other safety concerns include dropped or damaged fireworks exploding and putting the public at risk. One commenter would like to see a complete ban on the sale of fireworks in this state. Some commenters that are against the hands on sale of fireworks are agreeable with the rest of the rules as they were proposed. One commenter feels that the fireworks industry in Texas has an excellent safety record and that there has never been a serious injury or fatality at a walk-up counter. The commenter states that nationwide the walk-in-to, hands on fireworks stands have a far less than excellent record and questions why the state would trade an excellent record for one that is far less. The commenter contrasted this 5 pounds of fireworks with the possibility of 5,000 pounds in a store. The commenter added that statistically speaking, no matter how wide the aisles are or how many exits there are, 20% of the people in this situation probably won´t find their way out. The commenter does believe that hands on in a retail stand is much safer than hands on in a warehouse type store, but basically doesn´t think hands on is a safe way to go. The commenter presented copies of letters from Texas fire departments speaking against hands on. Another commenter feels that if the products are in customers´ hands, there is greater risk of tampering, black powder spilling or any number of things, which can be ignited from a number of sources. The commenter disagrees with another commenter´s numbers on how many states allow hands on and how they sell it. The commenter states that 36 states allow hands on, but only ten or eleven of those sell the variety of products that Texas sells. Texas has a larger concentration of buildings, bigger buildings, more products and more people. The commenter is opposed to shopping carts but believes they have been addressed. A commenter has a petition with over 700 names of concerned citizens that are opposed to the hands on sales of fireworks. Some commenters feel that the way fireworks have been sold (behind the counter) should not be changed. A commenter says that selling them hands on will take away one of the greatest safety measures. The commenter makes comparison to an auto parts store, where customers go in, tell the employee what they want and the employee goes and gets the part for the customer. There are no complaints from customers on this method. The commenter feels that having a lot of people in a store looking at and handling fireworks is not safe. The commenter agrees mostly with the rest of the rules with some minor changes, which have been made.

Comment: Some commenters believe there is genuine concern from everyone in the industry about fireworks safety. Overall, the industry goes out of its way to try to present the product in a way that will enhance consumer safety. The greatest area of interest and controversy is in the hands on area. The commenters feel the rules were drafted in an attempt to meet the concerns of small operations that would be significantly penalized if they had to meet the requirements for construction of larger facilities. The commenters want to minimize impact, financially and from a business perspective on smaller operators. They want a 2,500 square feet limitation on buildings. Buildings over 2,500 square feet should meet additional requirements regarding ceiling height and other areas. They also believe that if you have less than 500 cases or 350 feet of counter area, then you don´t have to meet the bulk storage requirements. They feel that exemptions should also apply, not only to the distance from other buildings but also the distance from highways. They feel that distance requirement from highways could be met with firewall requirements, thereby not placing a burden on some operators. The commenters feel that as long as an outdoor stand meets safety requirements for hands on or indoor sales, they should be allowed to have hands on sales at retail outdoor stands. The commenters also feel that supervisors should be 18, not 16, to meet the Life Safety Code 101, that fuses should be covered, that operators should file plans and get approval from the state and the county and have fire extinguishers, among other requirements. The commenters state that in the 44 states that allow some sort of "novelty," "Safe and Sane" or full Class C sales, 38 of those states allow hands on. Of the 24 states that allow full Class C sales, only Texas and Oklahoma do not allow hands on. There have not been a significant number of tragedies in the states that do allow hands on, and an incident in Ohio in ´96 was t he result of a blocked exit, inadequate aisles and poor construction requirements, not hands on. The commenters feel that hands on means personnel will not be behind counters and/or barricades, which will mean quicker exits in case of emergencies. The commenters do not feel that hands on will lead to pranks, and is the safe way to allow indoor sales.

Another commenter feels that it is important to realize that the products being sold do have to meet strict federal regulations of the Department of Transportation and the U. S. Consumer Product Safety Commission, with respect to the packaging of the product for shipment and storage, labeling, fuse performance, construction, and chemical composition. Consumer fireworks are very heavily regulated at the federal level to provide a layer of protection for the consumer. The commenter made two key points: First, a well-packaged product protects it during any handling, movement, touching, stocking, and restocking. Covered fuses using a plastic wrapper, tape or foil, that keep the fuse from being exposed, are very good safety measures. Second, it is important to have adequate aisle width, an adequate number of aisles and extra exits for the inside sale of fireworks. The commenter thinks that the proposed rules are incorporating the Life Safety Code of NFPA, which provide minimum aisle widths, as well as exit distance requirements. The commenter feels that a one or two hour fire walls as proposed in the Code would be effective in preventing the spread of fire. Also, it is very important to have adequate number of supervisory personnel and adequate personnel to handle customers. The commenter said that the NFPA would adopt a national code concerning fireworks. Some commenters feel that hands on is the safest option for the sale of fireworks.

Agency response:The department appreciates all of the comments received regarding the hands on issue in the retail sale of fireworks. Some of the comments were in favor of customers being allowed to handle (or have hands on) fireworks prior to purchase, while the majority of commenters were against customers handling fireworks. Accordingly, the department has changed the rules. The definition of "covered fuse" is removed since it is not necessary. As a result of the rule changes, a customer will only be allowed to handle fireworks if an attendant is directly assisting the customer. The rules have been clarified so that distances for indoor retail sites are easier to understand.

§34.832(1). A commenter agrees with the rule prohibiting a fireworks sales area from being a part of a multi-use or multi-tenant building and encourages applying this rule to "big box" convenience and similar stores.

Agency Response: The sale of Fireworks 1.4G will be prohibited from "big box" convenience and similar stores if they are multi-use or multi-tenant buildings.

Comment: Another commenter recommends adopting a new rule requiring that the minimum distances of Table 1 of §34.824 and a minimum distance of 50 feet from a inhabited building be required for the storage of any Fireworks 1.4G regardless of quantity.

Agency Response: This is not a comment applicable to the currently proposed rules and may be proposed to the fireworks advisory council at a later date.

§34.832(1) & (13). One commenter recommends a change to the proposed rules that would require a copy of the plan required in §34.832(13) and the evaluation of §34.832(1) to be submitted to the local county fire marshal's office.

Agency Response: The department notes that since the plan will be a matter of record and kept on file at the State Fire Marshal's Office, it may be accessed and provided to each county upon request. This addresses the concern of the commenter.

§34.832(2) & (13). One commenter is concerned with the language in §34.832 (5) in the proposal and the notification requirement. The commenter suggests amending §34.832 (5) to say ten days before each season rather than before June 14th of each year. The commenter also expressed concern with §34.832 (2) regarding covered fuses, which supposedly will retard fire.

Agency response: The department appreciates the comment concerning the date of June 14 th of each year. The department feels that the date should be left in since it is equivalent to 10 days before the July selling season begins. The commenter´s concerns with the use of covered fuses should be alleviated based on the changes to the rules. The definition for covered fuses is removed since the term is not used in the rules. The rules no longer allow hands on sales of fireworks, unless an attendant is directly assisting the customer.

§34.832(11). A commenter asks whether the provision of an outside electrical master switch, required in §34.832(11), would be applicable to all indoor retail fireworks sites regardless of the date built.

Agency Response: The rule does not specify any date or time restrictions to provide the switch; therefore it should apply to all indoor retail fireworks sites.

Occupations Code §2154.252(c). One commenter suggests the purchase age for fireworks under Occupations Code §2154.252(c) be raised from 12 to 16 years of age.

Agency Response: The department appreciates the comment and notes that it is the role of the Legislature to change the Occupations Code.

For: Two members of the Fireworks Advisory Council, TNT Fireworks, Fireworks Warehouse, Alamo Fireworks, Fireworks World, American Fireworks and AA Quality Fireworks.

Against as proposed: Texas Fireworks Association, Jag-1 Enterprises, Inc., Texas Fireworks Company, Inc., City of Crockett, City of Laredo Fire Department, Ponderosa Volunteer Fire Department, Lorena Volunteer Fire Department, Port Arthur Fire Department, Plainview Fire Department, Mr. B Fireworks, 10-Needham, Inc., Jake´s Fireworks, Committee Concerned for Fireworks Safety, Mr. W Fireworks, Cook-Daniels Fireworks and various individuals.

Neither for or against: Harris County Fire Marshal, Nelson´s Fireworks Outlet.

The sections are adopted pursuant to the Occupations Code Chapter 2154 and the Insurance Code §36.001. Occupations Code §2154.052 directs the commissioner to adopt rules the commissioner considers necessary for the protection, safety, and preservation of life and property, including rules regulating: (1) the issuance of licenses and permits to persons engaged in manufacturing, selling, storing, possessing, or transporting fireworks in this state; (2) the conduct of public fireworks displays; and (3) the safe storage of Fireworks 1.3G and Fireworks 1.4G. Additionally, §2154.052(d) provides that the commissioner, in adopting a rule, may use standards recognized by federal law or regulation and standards published by a nationally recognized standards-making organization. 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 only as authorized by statute.

§34.801. Purpose. The purpose of the rules set forth in this subchapter is to regulate the sale, distribution, and use of certain fireworks in the interest of protecting and preserving lives and property pursuant to the Occupations Code Chapter 2154. These rules should be read in conjunction with Occupations Code Chapter 2154 for a complete understanding of the regulation of this subject matter.

§34.804. Exemptions. The exemptions of the Occupations Code §2154.002 are applicable to this subchapter.

§34.806. Restrictive Use. No license or permit holder is authorized to enforce or attempt to enforce any section of the Occupations Code Chapter 2154 or this subchapter.

§34.807. Administration.

(a) The State Fire Marshal is charged with the duty to administer this subchapter, the orders of the commissioner and the enforcement of the Occupations Code Chapter 2154.

(b) Violations of these sections alone do not subject legally possessed fireworks to seizure or confiscation.

§34.808. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Acceptor building--A building which is exposed to embers and debris emitted from a donor building.

(2) Agricultural, industrial, or wildlife control permits--Permits authorizing the holder to use Fireworks 1.3G for specified purposes in these business activities.

(3) Bare wiring--Any electrical cable or cord any part of which has the insulating cover broken or removed, exposing bare wire.

(4) Barricade--A natural or artificial barrier that will effectively screen a magazine, building, railway, or highway from the effects of an explosion in a magazine or building containing explosives. It shall be of such height that a straight line from the top of any side wall of a building, or magazine containing explosives to the eave line of any magazine, or building, or to a point 12 feet above the center of a railway or highway, will pass through such natural or artificial barrier.

(5) Barricade, artificial--An artificial mound or revetted wall of earth of a minimum thickness of one foot.

(6) Barricade, natural--Natural features of ground, such as hills, or timber of sufficient density that the surrounding exposures that require protection cannot be seen from the magazine or building containing explosives when the trees are bare of leaves.

(7) Barricade, screen type--Any of several barriers for containing embers and debris from fires and deflagrations in process buildings that could cause fires and explosions in other buildings. Screen type barricades shall be constructed of metal roofing, inch or 1/2 inch mesh screen or equivalent material. A screen type barricade extends from the floor level of the donor building to such height that a straight line from the top of any side wall of the donor building to the eave line of the acceptor building will go through the screen at a point not less than five feet from the top of the screen. The top five feet of the screen are inclined at an angle of between 30 and 45 degrees, toward the donor building.

(8) Breakaway construction--A general term which applies to the principle of purposely providing a weak wall so that the explosive effects can be directed and minimized. The term "weak wall" as used in these sections refers to a weak wall and roof, or weak roof. The term "weak wall" is used in a relative sense as compared to the construction of the entire building. The design strength of the weak wall will vary as to the building construction, as well as to the type and quantity of explosive or pyrotechnic materials in the building. The materials used for weak wall construction are usually light gauge metal, plywood, hardboard, or equivalent lightweight material, and the material is purposely selected to minimize the danger from flying missiles. Method of attachment of the weak wall shall be such as to aid the relief of blast pressure and fireball.

(9) Bulk storage, Fireworks 1.4G--The storage of 500 or more cases of Fireworks 1.4G.

(10) Business--The manufacturing, importing, distributing, jobbing, retailing of permissible fireworks, acting as a pyrotechnic operator, the conducting of multiple public fireworks displays, using fireworks for agricultural, wildlife, or industrial purposes.

(11) Buyer--Any person or group of persons offering an agreed upon sum of money or other considerations to a sales person for fireworks.

(12) CFR--The Code of Federal Regulations, a codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. The Code is divided into 50 titles. The titles are divided into chapters, which are further subdivided into parts.

(13) Commissioner--The Commissioner of Insurance.

(14) Donor building--A process building from which embers and burning debris are emitted during a fire.

(15) DOT--The United States Department of Transportation.

(16) Fireworks plant--All lands, and buildings thereon, used for or in connection with the manufacture or processing of fireworks. It includes storage facilities used in connection with plant operation.

(17) Firm--A person, partnership, corporation, or association.

(18) Generator--Any device driven by an engine and powered by gasoline or other fuels to generate electricity for use in a retail fireworks stand.

(19) Highway--The paved surface, or where unpaved, the edge of a graded or maintained public street, public alley, or public road.

(20) Indoor retail fireworks site--A retail fireworks site other than a retail stand which sells Fireworks 1.4G from a building or structure.

(21) License--The license issued by the state fire marshal to a person or a fireworks firm authorizing same to engage in the business.

(22) Licensed firm--A person, partnership, corporation, or association holding a current license.

(23) Magazine--Any building or structure, other than a manufacturing building, used for storage of Fireworks 1.3G.

(24) Manufacturing--The preparation of fireworks mixes and the charging and construction of all unfinished fireworks, except pyrotechnic display items made on site by qualified personnel for immediate use when such operation is otherwise lawful.

(25) Master electric switch--A manually operated device designed to interrupt the flow of electricity.

(26) Mixing building--A manufacturer's building used for mixing and blending pyrotechnic composition, excluding wet sparkler mixes.

(27) Multiple public display permit--A permit issued for the purpose of conducting multiple public displays at a single approved location.

(28) Nonprocess building--Office buildings, warehouses, and other fireworks plant buildings where no explosive compositions are processed or stored. A finished firework is not considered an explosive composition.

(29) Open flame--Any flame that is exposed to direct contact.

(30) Process building--A manufacturer's mixing building or any building in which pyrotechnic or explosive composition is pressed or otherwise prepared for finishing and assembling.

(31) Public display permit--A permit authorizing the holder to conduct a public fireworks display using Fireworks 1.3G, on a single occasion, at a designated location and during a designated time period.

(32) Retail fireworks site--The structure from which Fireworks 1.4G are sold and in which Fireworks 1.4G are held pending retail sale.

(33) Retail stand--A retail site which sells Fireworks 1.4G over the counter to the general public who always remain outside the structure.

(34) Safety container--A container especially designed, tested, and approved for the storage of flammable liquids.

(35) School--Any inhabited building used as a classroom or dormitory for a public or private primary or secondary school, or institution of higher education.

(36) Selling opening--An open area including the counter, through which fireworks are viewed and sold at retail.

(37) Storage facility--Any building, structure, or facility in which finished Fireworks 1.4G are stored, but in which no manufacturing is performed.

(38) Supervisor--A person 16 years or older who is responsible for the retail fireworks site during operating hours.

(39) Walk door--An opening through which retail stand attendants can freely move and which can be secured to keep the public from the interior of the stand.

§34.813. Applications for Licenses and Permits.

(a) Applications for a license or permit to engage in the business, other than retail permits, shall be on forms provided by the state fire marshal, and shall be accompanied by the appropriate fee and documentation as may be required.

(b) Applications must be signed by the sole proprietor, by each partner of a partnership, or by an officer of a corporation or association. Applications from foreign and out of state corporations shall be accompanied by evidence of authority to conduct business in this state granted by the Texas secretary of state and where applicable, the applicant shall evidence compliance with the Assumed Business or Professional Name Act, Texas Business and Commerce Code, Chapter 36.

(c) Applications for a public display permit shall include the following information:

(1) the name, address, and telephone number of the applicant;

(2) a copy of the site inspection report from the fire prevention officer;

(3) the location or alternate location for the display;

(4) the name and license number of the pyrotechnic operator who is to supervise the display;

(5) the size and estimated number of fireworks to be discharged, the number of set pieces, and other items;

(6) the manner and place of storage of such fireworks prior to and during the display;

(7) a diagram of the grounds on which the display is to be held indicating the:

(A) area meeting appropriate distance regulations which outlines the parameters within which the particular site may be adjusted on the day of the proposed display to address safety concerns or wind changes from which fireworks will be discharged;

(B) distance from exposure to discharge point;

(C) distance from spectators to discharge point; and

(D) method of spectator restraint;

(8) evidence of public liability insurance, as required by the Occupations Code §2154.205;

(9) the name and license number of the manufacturer or distributor licensed in Texas who is to supply the fireworks; and

(10) applications for a display permit shall include the date, time, and the alternate date and time of the display.

(d) A completed application for a public display permit shall be received by the state fire marshal before the display is to be conducted. A facsimile or other photocopy of the application received by the state fire marshal during normal working hours prior to the date of the display and determined to be in compliance with the provisions of this section, along with the appropriate fee, shall be acceptable for purposes of this section. An applicant issued a permit under the facsimile provisions of this section shall maintain original documentation of the application for a period of one year and shall provide such original materials to the state fire marshal on request.

(e) An additional public display permit shall be required for each site separated from the permitted site by over 1,000 feet measured horizontally.

§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; and

(9) agricultural, industrial, and wildlife control permits $10.

(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.


§34.815. Retail Permits.

(a) A retail permit shall be required for each retail stand or other retail sales location.

(b) Retail permits may be obtained at any time of the year from any participating manufacturer, distributor, or jobber holding a valid license to do business in Texas or from the state fire marshal, and shall be signed by the applicant prior to said permit becoming effective.

(1) A retail permittee shall purchase Fireworks 1.4G only from a distributor or jobber licensed in this state.

(2) Bulk storage of Fireworks 1.4G by a retail permittee shall be in compliance with §34.823 of this title (relating to Bulk Storage of Fireworks 1.4G).

(3) Fireworks 1.4G shall be sold to the general public only at legally permitted retail fireworks sites and during the legal selling periods defined in the Occupations Code §2154.202.

(4) A copy of the Occupations Code Chapter 2154 and the fireworks rules, or a condensed version thereof, shall be provided to the purchaser of a retail permit by the participating licensee at the time the permit is issued. Copies of the Occupations Code Chapter 2154 and the fireworks rules shall be made available through the State Fire Marshal's office.

(c) Any licensee purchasing books of permits for sale to retail operators shall properly account for all permits received.

(1) The licensee who issues retail permits shall return books containing duplicate copies of each issued permit to the State Fire Marshal's office within a week from the time the last permit in each book has been issued. All used and unused permits shall be returned no later than March 1 of each year.

(2) The returned copies in each book are considered the official record of retail permits sold.

(3) A licensee may exchange any unissued retail permit which has not been voided or otherwise rendered unusable for a new permit at the end of each year following expiration.

§34.817. Retail Sales General Requirements.

(a) A supervisor, 16 years of age or older, shall be on duty during all phases of operation. It shall be the responsibility of the permit holder as well as the supervisor to comply with or require compliance with the fireworks rules.

(b) A building with more than 350 linear feet of fireworks counter display or containing a total of 500 or more cases of Fireworks 1.4G for sales or storage by a retailer shall comply with §34.823 of this title (relating to Bulk Storage of Fireworks 1.4G), except as provided by §34.832, of this subchapter (related to Specific Requirements for Retail Fireworks Sites Other Than Stands).

(c) Heat-sealing of packages within retail fireworks sites is prohibited.

(d) Each retail fireworks site determined to have fire danger external of the sales area shall be provided with equipment or facilities that are capable of extinguishing small exterior fires that would threaten the retail stand. Retail sales in other than a stand shall have a fire extinguisher rated not less than 2-A. An extinguisher shall be located within 75 feet walking distance from any point in the building, and each extinguisher shall cover a floor area not greater than 1000 square feet per unit of "A" rating.

(e) An unobstructed pathway to walk doors shall be maintained within the retail fireworks site during selling operation.

(f) The display, offer for sale, or sales of fireworks from tents and motor vehicles is prohibited.

(g) Smoking shall not be permitted in the retail fireworks site. The presence of lighted cigars, cigarettes, or pipes within 10 feet of any site where fireworks are sold or stored is prohibited. "Fireworks" and "No Smoking" signs in letters not less than four inches high shall be conspicuously posted on the inside and outside of each entrance door and at several locations inside the building.

(h) The consumption or possession of alcoholic beverages in any retail fireworks site is prohibited. No retail sales personnel inside the facility or any supervisor shall be under the influence of or consume alcoholic beverages while on duty.

(i) A retail fireworks site may only sell fireworks, fireworks promotional items and accessories and those items listed in the Occupations Code §2154.002(4). The display and offer for sale, or sales of fireworks within any structure or building where any other business or any other merchandise is sold is prohibited.

(j) A retail permit shall be required for each retail fireworks site offering fireworks for sale during selling season and shall be posted in the sales area.

(k) The display or offer for sale or sales of fireworks from single or multifamily residential structures is prohibited.

(l) All retail fireworks sites must furnish parking off the highway.

(m) An area of at least 10 feet in width on all sides of a retail fireworks site shall be kept free of high grass, empty cardboard boxes and trash.

(n) Fireworks shall not be displayed or stored behind glass through which direct sunlight will shine on the fireworks.

(o) Fireworks offered for sale to the general public in this state shall conform to the labeling requirements of the United States Consumer Product Safety Commission and the United States Department of Transportation. Only labeling specifications or requirements mandated by either of these agencies shall be required for the labeling of items offered for sale in Texas.

(p) Internal combustion engines shall not be operated inside a retail fireworks sales site.

(q) Prior to the issuance of a retail permit, the applicant must present evidence of a valid current sales tax permit issued by the comptroller of public accounts, and the sales tax permit number must be entered on the retail fireworks permit by the person issuing the permit.

§34.818. Specific Requirements for Retail Fireworks Stands. A retail fireworks stand shall comply with the following requirements:

(1) The fireworks stand in which Fireworks 1.4G are held for retail sale shall be constructed of wood, metal, masonry, or concrete, or combinations thereof.

(2) Each stand of less than 16 feet in length shall have at least one walk door, which opens outward. Stands measuring 16 feet or longer must have at least two walk doors, one in each end, which open outward.

(3) A minimum of combustible material such as posters, signs, and decorations may be used on interior walls.

(4) A minimum distance of six feet shall be maintained from the front of the customer counter to the back side of the stand.

(5) Electrical service to the stand shall be installed at least eight feet above ground or buried underground according to standards acceptable to the authority having jurisdiction.

(6) Each stand utilizing electricity shall have a point of power interruption, either inside or outside the stand, (switch or switches) located near an exit door which interrupts all electric supply to devices and equipment located inside and on the stand.

(7) All electrical wiring, equipment, and devices both inside and outside the stand, shall be UL approved, be securely mounted to the structure, and be installed and maintained to prevent electrical hazards. Splices in electrical wiring servicing equipment and devices inside the stand shall be enclosed in junction boxes. Light fixtures and wiring used for illumination inside and outside of the stand shall be installed and maintained to prevent accidental contact by the general public and employees.

(8) Drop cords with lights, extension cords, or bare wiring shall not be used in any manner inside a retail stand.

(9) In stands where generator-created power is used, the generator shall be located in an area free from grass, trash, and other flammable materials and at least 10 feet from the stand. Reserve fuel for the generator must be stored in an approved safety container and a portable fire extinguisher rated to at least 6 BC shall be provided.

(10) Fireworks stands shall not be illuminated or heated by any device which requires open flame or exposed heating elements. Electric heaters shall be equipped with a switching device to stop the flow of current should the heater be tipped over.

(11) If the fireworks stand is used for the overnight storage of Fireworks 1.4G, it must be equipped with suitable locking devices to prevent unauthorized entry.

§34.820. Requirements for Manufacturing, Bulk Storage, and Magazine Facilities. All manufacturing and bulk storage facilities shall comply with the applicable provisions of the Occupations Code Chapter 2154 and this subchapter.

§34.828. Existing Facilities and Conditions. Existing facilities and conditions outlined in this section which do not comply with the Occupations Code Chapter 2154 and this subchapter shall come into compliance within the following time periods after the effective date of this subchapter:

(1) manufacturing facilities--five years;

(2) bulk storage facilities--three years; and

(3) individuals applying for a pyrotechnic operator license before September 1, 1986, may be issued a license if they otherwise qualify and have passed the required examination, but do not comply with the supervisory requirement of §34.811(e)(1) of this title (relating to Requirements, Pyrotechnic Operator License).

§34.830. Savings Clause. Each disciplinary action by the Texas Department of Insurance taken against a person or organization licensed or permitted under Occupations Code Chapter 2154 shall be taken in accordance with the statutory law, regulations and orders of the commissioner of insurance or state fire marshal in effect at the time of the regulated action for which the disciplinary action is taken.

§34.832. Specific Requirements for Retail Fireworks Sites Other Than Stands. Indoor retail fireworks sites shall comply with the following requirements:

(1) The retail fireworks sales building shall be a free standing durable structure with only one story of space accessible to the public. It shall not be a tent, boat, or mobile vehicle. The fireworks sales area shall not be part of a multi-use or multi-tenant building.

(2) The following distance requirements shall apply to an indoor retail fireworks site owned or leased by a fireworks licensee, which had a fireworks retail permit or a building permit in effect or was under construction on or before November 18, 2002, and stores or displays over 500 cases of Fireworks 1.4G in the building.

(A) The fireworks sales building shall be a minimum distance of 60 feet from any inhabited building;

(B) The fireworks sales building shall be a minimum distance of 30 feet from the property line.

(C) The fireworks sales building shall meet the distance requirements of §34.824 Table 1 of this title (relating to Distance Tables), or have a minimum 1 hour fire rated exterior wall with a minimum 3/4 hour fire rated protected openings.

(D) An office area used for the operation of the site, separated by a one hour fire rated wall from the fireworks sales or storage area, may be exempt from the distance requirements after it is reported to and reviewed by the state fire marshal.

(3) The following distance requirements shall apply to an indoor retail fireworks site owned or leased by a fireworks licensee, which did not have a fireworks retail permit or a building permit in effect or was not under construction on or before November 18, 2002, and stores or displays over 500 cases of Fireworks 1.4G in the building.

(A) The fireworks sales building shall be a minimum distance of 60 feet from any inhabited building;

(B) The fireworks sales building shall be a minimum distance of 30 feet from the property line;

(C) The fireworks sales building shall meet the distance requirements of §34.824 Table 1 of this title, or have a complete automatic fire sprinkler system installed in accordance with NFPA 13 "Standard for the Installation of Sprinkler Systems."

(4) Subsequent construction by adjacent property owners or public authorities shall not subject licensee or permittee to a distance regulation violation under this section, provided existing facilities are not enlarged or expanded after the subsequent construction.

(5) Fireworks sales display areas shall be sufficiently designed to prevent customers from handling fireworks, unless an attendant is directly assisting the customer. Sales display areas must include a continuous durable restraint around displayed fireworks separating the customers from all merchandise. The height, weight, and stability of the restraint must be designed to prevent individuals from penetrating the barrier.

(6) Fireworks in the sales area shall be limited to the displayed merchandise unless stored in closed cardboard boxes not accessible to the public.

(7) Access to fireworks when stored in a separate and distinct area away from general fireworks sales shall be restricted to employees only and "No Smoking" signs shall be posted inside.

(8) The local fire department and the county fire marshal, if one is appointed or elected in that county, shall be notified in writing, postmarked or faxed on or before June 14 of each year, of the business location, placement of fireworks in building or structure, maximum amount of fireworks in the building, and time period that fireworks will be stored or sold.

(9) Trash, rubbish, and unused boxes, except for small quantities stored in an orderly manner for reuse, shall be removed from the sales, storage and adjacent areas daily, or as often as necessary to prevent unsafe accumulation.

(10) Fireworks shall not be displayed or stored behind glass through which direct sunlight will shine on the fireworks.

(11) Extension cords shall not be located where the general public could walk over them. An extension cord may be used to extend power to a single appliance or single power strip. An extension cord providing power to a power strip shall be of the same or greater wire gauge. Power strips used for multiple appliances must contain an internal circuit breaker. Extension cords and power strips shall be protected from accidental damage. Flexible cords and cables shall not be used as a substitute for the fixed wiring of a structure.

(12) A supervisor, 18 years of age or older, shall be on duty during all phases of operation. All fireworks sales personnel shall be 16 years of age or older. The permit holder and the supervisor shall ensure that all sales personnel comply with this subchapter.

(13) All trash containers used by the general public shall be metal or heavy plastic and be located 10 feet from any displayed or stored fireworks.

(14) An outside electrical master switch shall be provided at each retail location.

(15) Portable space heaters shall not be permitted in retail or storage areas.

(16) A retail sales permit, for other than a retail stand, shall not be valid until a plan is on file at the state fire marshal´s office showing the following:

(A) the address or location of the site;

(B) the name of the person to whom the permit is issued;

(C) the outline and length of all building exterior walls;

(D) the floor area, location and dimensions used for fireworks sales;

(E) the floor area, location and dimensions used for fireworks storage outside the sales area;

(F) the floor area, location and dimensions used for other than fireworks sales and storage;

(G) the general location, description and distances from the exterior walls to all buildings, fireworks storage magazines, highways, and equipment for storage or dispensing of flammable liquids or compressed gas;

(H) the location of the master electrical cut-off switch;

(I) the location and width of all building doors and paths of egress; and

(J) the maximum estimated number of cases to be stored or displayed for sale in the site.

(17) Cooking equipment shall not be used within rooms used for fireworks sales or storage.

(18) All fireworks retail sites with a sales area more than 2500 square feet, shall have a minimum average ceiling height of 12 feet. The sales area is the total square feet of floor area used to sell or store fireworks in an indoor retail fireworks site. Each sales area may be separated from another sales area by a fire barrier having a resistance rating of not less than one hour, with all openings therein protected by a 3/4 hour fire protection-rated self closing fire doors.

(19) An indoor retail fireworks site shall comply with the mercantile occupancy requirements of the standards adopted in §34.303 of this title (relating to Applicability of Rules). This standard, NFPA 101, Life Safety Code, is published by and is available from the National Fire Protection Association, Quincy, Massachusetts, 1-800-344-3555.

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