28 TAC §§34.506, 34.507, 34.510 - 34.512, 34.514 - 34.517 and 34.521
The Texas Department of Insurance proposes amendments to §34.506 concerning definitions for fire extinguisher rules; §34.507 concerning adopted standards; § 34.510 concerning certificates of registration; §34.511 concerning fire extinguisher licenses; §34.512 concerning apprentice permits; §34.514 concerning applications for certificates of registration and fire extinguisher licenses; §34.515 concerning fees; §34.516 concerning examinations; §34.517 concerning installation and service of fire extinguishers; and §34.521 concerning red tags used to indicate that corrective action or replacement is necessary for portable fire extinguishers or fixed systems. Article 5.43-1 §9 of the Insurance Code gives the commissioner the authority to delegate the exercise of all or part of his functions, powers and duties under this article to the Fire Extinguisher Advisory Council . The members of the council assist in the review and formulation of rules adopted under that section and periodically review the rules and recommend changes in the rules to the commissioner. The amendments are necessary to clarify the intent of the existing rules, add requirements to implement the latest improved nationally recognized safety standards, revise requirements to accommodate and facilitate the latest state-of-the-art industry practices and amend paperwork licensing procedures which will permit the State Fire Marshal´s Office (SFMO) to more equitably and efficiently regulate the activities of this industry through the enforcement of these proposed rules, thereby providing an increased level of safety to the public which utilizes and relies on these fire extinguisher systems.
T he proposed amendments to §34.506 refine the definition of "shop" and add a new definition for "direct supervision." The proposed amendment to §34.507(1) requires the installation of a new K class type fire extinguisher for new installations protecting cooking appliances that use combustible cooking media, but permits extinguishers, installed prior to June 30, 2004, that met the code at the time they were installed, to remain at the discretion of the owner. The proposed amendments to §34.510(c) eliminate the requirement for the SFMO to issue specific types of fire extinguisher certificates of registration based on the type of licensee employed by the registered firm. These proposed amendments add restricting language to limit the activity of the registered firm to the activities permitted by the license held by their employees and specify that the existing requirement for a separate Type C registration to engage in specific DOT hydrostatic testing is still in effect. The proposed amendments to §34.510(e) set forth what is necessary to ensure that a registered firm´s shop is adequately equipped to service and test all fire extinguishers or systems by delineating the currently required minimum information and equipment a shop must maintain to actually provide the service. The proposed amendments to §34.510(k) establish the timeframe within which a firm must report the need for a revision to a certificate and delete the requirement that the firm surrender the certificate requiring change. The proposed amendments to §34.511(a) clarify the existing authorized business activity permitted under a Type A license by adding language to differentiate the activity permitted by the license for pre-engineered fixed systems and other than pre-engineered fixed systems to be consistent with Article 5.43-1 §4(c) of the Insurance Code. Additionally, the amendment to §34.511(a)(4) proposes a new specialized license, Type K, for new applicants whose activities are currently a part of a Type A license. In lieu of meeting all the requirements for a Type A license, the specialized licensee may choose to limit the scope of work to the servicing and certifying of portable fire extinguishers and the installation, certifying and servicing of pre-engineered fixed fire extinguisher systems exclusively for institutional cooking areas, since this is the overwhelming quantity of work in these industries. The proposed amendments to §34.511(f) eliminate redund ancy created by the proposed amendments in §34.510(c) and amend the qualifications to obtain a Type A and a newly proposed Type K license. The proposed amendments to §34.512 eliminate the mandatory requirement for a licensee to submit their old license that requires a revision, prior to the issuance of a new revised license and add new subsection (e) which define the work an apprentice permittee may perform when under direct supervision of a licensee. The proposed amendments to §34.514(b)(2) ensure that an applicant for a Type A license meets the proposed requirements of §34.511(f) and is competent to install and service fixed systems. The proposed amendments to §34.514(b)(4) require the applicant to indicate on their application if they are an employee or an agent of a registered firm and to ensure in writing that if the applicant is an agent, that they are covered by the same insurance policy required by §34.514(a)(7). The proposed amendment to §34.515(c)(3) adds the fee requirements for the newly proposed Type K license. The proposed amendments to §34.516 add the test requirements for the proposed Type K license. The proposed amendments of §34.517 correct the title of §34.507 and add new subsections (g) (j). Proposed subsection (g) clarifies that installation or servicing of a fixed fire extinguisher system that includes the installation and servicing of an alarm or detection system and/or a fire sprinkler system requires the appropriat e licensing for that type system. Proposed subsection (h) requires the fusible metal alloy type fixed temperature-sensing elements, replaced during servicing of an institutional cooking area, bear the manufacturer´s date stamp; the date stamp must be within one year of the date of the replacement. Proposed subsection (i) requires the year in which a disposable actuation cartridge is replaced. Proposed subsection (j) specifies that when a tamper indicator on a portable fire extinguisher is attached, the flag of the seal shall bear the year it was attached.
The proposed amendments to §34.521 specify the minimum time frame to ensure that the owner and local authority having jurisdiction receive timely notification of impairments that render a portable extinguisher or fixed system unsafe or inoperable.
It is the department´s expectation that affected individuals will be in compliance with the proposed amendments no later than January 1, 2005 . The extended period of time between the effective date and the applicable date will provide a reasonable amount of time for registered firms to ensure that a responsible managing employee is available to directly supervise installation and servicing of portable fire extinguishers or fixed fire extinguisher systems and for individuals to comply with new requirements for their license/permit or to acquire the new Type K class fire extinguisher license.
Patricia Gilbert, Acting State Fire Marshal, has determined that for each year of the first five years the proposed amendments are in effect, there will be no fiscal impact to state government. There will be no fiscal implications for local government as a result of enforcing or administering the new standards, and no effect on the local economy or local employment.
Ms. Gilbert also has determined that for each year of the first five years the proposed sections are in effect, the anticipated public benefit from enforcing and administering these sections is improved continuity of effective and efficient regulation of fire extinguishing systems. There will also be more efficient use of the registered firm´s resources as each firm will be required to hold only one general certificate of registration and will not be required to apply for a new different type of certificate if the services rendered by the firm change. For example, a firm that only services portable extinguishers decides to expand its business and include in its services the planning, certifying, leasing and renting of fixed extinguisher systems; the firm will need only to hire employees that hold that type license. The type of extinguisher service a registered firm renders will be dependent upon its employed licensees rather than the certificate the firm holds. The initial fee for the proposed K license is $70 and the 2-year renewal fee for this license is $100. The cost to a fire extinguisher firm or person in the fire extinguisher industry qualifying as a small business under the 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 cost licensees incur when qualifying for their license. It is neither legal nor feasible to waive the proposed amendments for small or micro businesses because requirements for installation and service of extinguisher system must be applied consistently to large, small and micro businesses.
To be considered, written comments on the proposal must be submitted no later than 5 p.m. on August 16, 2004 to Gene C. Jarmon, General Counsel and Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments must be simultaneously submitted to Patricia Gilbert, Acting State Fire Marshal, Mail Code 112-FM, Texas Department of Insurance, P.O. Box 149104 , Austin , Texas 78714-9104 . Requests for a public hearing should be submitted separately to the Office of the Chief Clerk.
The amendments are proposed pursuant to the Insurance Code Article 5.43-1 and §36.001. Section 2 of Article 5.43-1 provides that the Commissioner of Insurance may adopt rules necessary for the administration of this article. Section 8 provides that the commissioner shall formulate and administer rules determined to be essentially necessary for the protection and preservation of life and property, specifically applicable to installing and servicing fire extinguisher systems. Section 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.
The following statute is affected by the proposed sections: Insurance Code Article 5.43-1.
§34.506. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (16) (No change.)
(17) Shop - A facility , whether at a specific location or in a mobile unit, of a registered firm where servicing, repairing, or hydrostatic testing is performed and where parts and equipment , which are required by this subchapter or in the adopted standards, are maintained.
(18) (No change.)
(19) Direct supervision - The oversight by a licensee of the services performed by another licensee or permittee. The licensee, performing the direct supervision at the shop, must be present, at all times, on the premises where the supervised licensee or permittee is performing the service. When not at the shop the individual being supervised must be within sight of the licensee performing the direct supervision when installing or servicing portable fire extinguishers or fixed fire extinguisher systems.
§34.507. Adopted Standards. The commissioner 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, Standard for Portable Fire Extinguishers, except that the exception to paragraph 2-3.2 shall be deleted and the following wording substituted: "Exception: Extinguishers installed specifically for these hazards prior to June 30, 2004 . " ["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) - (13) (No change.)
(a) (b) (No change.)
(c) Types of certificates. The business activity authorized by the certificate is limited to the business activity(ies) authorized under the license of its employees. A separate Type C registration is required to engage in the business of hydrostatic testing of DOT specification fire extinguisher cylinders. [ Each certificate must be identified by type, which will indicate the business activity authorized under the certificate. ]
[ (1) Type PL --For the planning, certifying, installing, leasing, renting, selling, and servicing of fixed fire extinguisher systems and the certifying, leasing, renting, selling, or servicing of portable fire extinguishers. ]
[ (2) Type A--For portable fire extinguisher and fixed fire extinguisher system business, excluding system planning as defined in §34.506 of this title (relating to Definitions). ]
[ (3) Type B--For the portable fire extinguisher business only. ]
[ (4) Type C--For hydrostatic testing of DOT Specification fire extinguisher cylinders. ]
(d) (No change.)
(e) Shop. A registered firm must establish and maintain a shop whether at a specific location or in a mobile unit designed so that servicing, repairing, or hydrostatic testing can be performed. The shop must be adequately equipped to service or test all fire extinguishers or systems the registered firm installs and services. At a minimum a firm shall maintain the following:
(1) a copy of the most recently adopted edition of NFPA 10;
(2) a copy of the most recently adopted Texas Insurance Code Article 5.43-1 and §§34.501 34.523 of this chapter (relating to Fire Extinguishers Rules);
(3) a list of manufacturers and/or types of portable extinguishers serviced with their respective manuals and/or part lists;
(4) portable weight scale to accurately measure extinguisher gross weights;
(5) seals or tamper indicators;
(6) temporary fire extinguishers replacements;
(7) if performing annual maintenance on carbon dioxide extinguishers, at a minimum, the following additional items are required:
(A) conductivity tester, and
(B) conductivity test label.
(8) if performing internal maintenance for portable extinguishers, a written notice shall be kept on file indicating the registered firm performing the maintenance or, at a minimum, the following additional items are required:
(A) appropriate tools to remove and reinstall a valve head;
(B) charging adapters;
(C) Teflon tape, silicone grease, solvent or other lubricant used;
(D) supply of spare parts for respective manufacturers and type of fire extinguishers serviced;
(E) appropriate recharge agents;
(F) agent fill funnels;
(G) light designed to be used for internal inspections;
(H) dry chemical closed recovery system or sufficient new dry chemical;
(I) leak test equipment;
(J) dry nitrogen cylinders, regulator and calibrated gauges for pressurizing cylinders;
(K) verification collar rings; and
(L) six year maintenance labels.
(9) if performing hydrostatic testing for portable extinguishers, a written notice shall be kept on file indicating the registered firm performing the test or, at a minimum, the following additional items are required:
(A) working hydrostatic test pump, with flexible connection, check valves and fittings;
(B) protective cage or barrier;
(C) calibrated gauges;
(D) drying equipment;
(E) hydrostatic test log; and
(F) hydrostatic test labels.
(10) if performing maintenance for DOT specification portable fire extinguishers, a written notice shall be kept on file indicating the registered firm which would perform the hydrostatic test when required or, at a minimum, the following additional items are required:
(A) a current Type C registration issued through the State Fire Marshal´s Office; and
(B) verification of registration through the US DOT.
(11) if installing or servicing a fixed fire extinguisher system, at a minimum, the following additional items are required:
(A) copy of the latest adopted edition of applicable NFPA standards with respect to the type of system installed or serviced;
(B) applicable manufacturer´s service manuals for the type of system; and
(C) any special tools or parts as required by the manufacturer´s manual.
(f) (j) (No change.)
(k) Revised certificates. The change of a firm's name, location, or mailing address requires a revised certificate. Within 14 days after the change requiring the revision, the registered firm must submit written notification of the necessary change accompanied by the required fee to the State Fire Marshal´s Office. [ Certificates requiring changes must be surrendered to the state fire marshal within 14 days after the change requiring the revision. The certificate holder must submit written notification of the necessary change with the surrendered certificate, accompanied by the required fee. ]
(l) (No change.)
(a)Types of licenses. Each license must be identified by type, which indicates the business activity authorized under the license.
(1) Type PL For the planning, supervising, certifying, installing, or servicing of fixed systems other than pre-engineered systems. A system planning licensee may also perform, supervise, or certify the installation or servicing of pre-engineered fixed systems and portable fire extinguishers.
(2) Type A For certifying or servicing the installation of fixed fire extinguisher systems other than pre-engineered systems or for installing, certifying, or servicing of pre-engineered fixed fire extinguisher systems and the certifying and servicing of portable extinguishers.
(3) Type B For the servicing, certifying, and low-pressure hydrostatic testing of portables.
(4) Type K For installing, certifying, or servicing of pre-engineered fixed fire extinguisher systems for the protection of cooking areas and the certifying and servicing of portable extinguishers.
(b) - (e) (No change.)
(1) (No change.)
[ (2) A Type A, B, or PL licensee shall not plan, install, or service fixed systems while employed by a firm holding only a Type B certificate. ]
[ (3) A Type B licensee shall not plan, install, or service fixed systems even though employed by a firm holding a Type A certificate. ]
(2) [ (4) ] A license is neither temporarily nor permanently transferable from one person to another.
(3) [ (5) ] A registered firm must notify the state fire marshal within 14 days after termination of employment of a licensee.
(4) A Type A or Type K license shall not be issued to an individual unless the individual has held an apprentice permit or a Type B license for at least six months or has held a license to service fixed extinguisher systems for at least six months from another state.
(a) (b) (No change.)
(c) Revised permits. The change of a permittee's employer, home address, or mailing address requires a revised permit. Within 14 days after the change requiring the revision, the permit holder or registered firm must submit written notification to the State Fire Marshal´s Office of the necessary change accompanied by the required fee. [ Permits requiring changes must be surrendered to the state fire marshal within 14 days after the change requiring the revision. The permit holder and his employer must submit written notification of the necessary change, with the surrendered permit, accompanied by the required fee. ]
(d) (No change.)
(e) Apprentice. An individual holding a current apprentice permit may, under the direct supervision of the licensee, assist in all respective services of the licensee; however, the licensee must sign all documents requiring the licensee´s signature.
(a) Certificates of registration.
(1) - (6) (No change.)
(7) The applicant must comply with the following requirements concerning liability insurance.
(A) - (B) (No change.)
(C) Evidence of public liability insurance, as required by the Insurance Code, Article 5.43-1, §4A, must be in the form of a certificate of insurance executed by an insurer authorized to do business in this state [ or, until September 1, 1989, a certificate of insurance for surplus lines coverage in compliance with the Insurance Code, Article 1.14-2, as provided for under the Insurance Code, Article 5.43-1, §4A(c) ].
(D) - (F) (No change.)
(b) Fire extinguisher licenses.
(1) (No change.)
(2) Applications for Type A licenses must be accompanied by a written statement from the certificate holder (employer) certifying that the applicant meets the minimum requirements of §34.511(f)(4) of this subchapter (relating to Fire Extinguisher Licenses) and is competent [ the applicant's competency ] to install or service fixed systems [ which the certificate holder is currently qualified to install or service ].
(3) (No change.)
(4) All applications must indicate if the individual is an employee or agent of the registered firm.
(A) If the individual is an employee of the registered firm, the State Fire Marshal´s Office may request from the registered firm a copy of the individual´s past pay receipts and federal withholding forms to verify the condition of employment.
(B) If the individual is an agent of the fire extinguisher firm, the firm must provide a letter or other document acceptable to the State Fire Marshal´s Office issued by the firm´s insurance company, verifying the policy number and that the acts of the individual are covered by the same insurance policy required by this subchapter to obtain the firm´s registration. The verifying document must be submitted to the State Fire Marshal´s Office before a license will be issued or when there is a change in the licensee´s registered firm. Renewal of a license does not require insurance verification unless there has been a change in the insurance carrier.
(c) (g) (No change.)
(a) - (b) (No change.)
(c) Fees are as follows.
(1) - (2) (No change.)
(3) Fire extinguisher license (Type A , [ and ] B and K ):
(A) - (D) (No change.)
(4) - (8) (No change.)
(d) - (e) (No change.)
(a) Applicants for licenses are required to take a test and obtain at least a grade of 70% on the test. Tests may be supplemented by practical tests or demonstrations deemed necessary to determine the applicant's knowledge and ability. The test content, frequency, location and outsource testing service shall be designated by the state fire marshal.
(1) (No change.)
(2) The Type A license test will include questions on the following: [ the topics described in paragraph (1)(A) and (B) of this subsection and fixed systems. ]
(A) this subchapter and the Insurance Code Article 5.43-1;
(B) installing and servicing of portables;
(C) fixed systems; and
(D) installing and servicing pre-engineered fixed fire extinguisher systems for the protection of cooking areas.
(3) The Type K license test will include questions on the following:
(A) this subchapter and the Insurance Code Article 5.43-1;
(B) installing and servicing of portables; and
(C) installing and servicing pre-engineered fixed fire extinguisher systems for the protection of cooking areas.
(4) [ (3) ] The Type PL license test will include questions on the following: [ the topics described in paragraph (1)(A) of this subsection and a technically qualifying test to be conducted through NICET. ]
(A) this subchapter and the Insurance Code Article 5.43-1; and
(B) a technically qualifying test to be conducted through NICET.
(b) - (f) (No change.)
(a) The following requirements are applicable to all portable extinguishers.
(1) (3) (No change.)
(4) A licensee who services portable fire extinguishers in accordance with paragraph (3) of this subsection, shall comply with the following:
(A) (No change.)
(B) All missing markings, code symbols, instructions and information, required by the applicable performance standard and fire test standard specified in §34.507(1) of this subchapter (relating to Adopted Standards [ adopted standards and recommendations ]), except for the approving or listing mark of the testing laboratory, shall be affixed to each extinguisher in the form of a label designated in the standard.
(b) (f) (No change.)
(g) If the installation or servicing of a fixed fire extinguishing service includes the installation or servicing of any part of a fire alarm or detection system and/or a fire sprinkler system other than inspection and testing of detection or supervisory devices, the licensing requirements of the appropriate Insurance Code Article 5.43-2 or 5.43-3, must be satisfied.
(h) The fixed temperature-sensing elements of the fusible metal alloy type, replaced while servicing a kitchen hood fire extinguishing system, must bear the manufacturer´s date stamp which must be within one year of the date of the replacement.
(i) The disposable actuation cartridge, replaced while servicing a kitchen hood fire extinguisher system, must bear the date of replacement.
(j) After operating the pull pin or locking device during maintenance of a portable fire extinguisher, the flag of the new seal or tamper indicator shall bear the year it was attached.
(a) If impairments are found which make a portable extinguisher or fixed system unsafe or inoperable, the owner or his representative must be notified in writing of all impairments. The registered firm shall notify the owner or his representative immediately and must also notify [ send a copy of this notice to ] the local authority having jurisdiction (AHJ) when available within 24 hours by phone, fax, or e-mail describing the impairments [ 30 days ]. A copy of the written notice to the owner shall be submitted to the AHJ within 3 days. A completed red tag must be attached to indicate that corrective action or replacement is necessary. The signature of the licensee on the tag certifies that the impairments listed indicate that the equipment is unsafe or inoperable. A service tag must not be attached until the impairments have been corrected or the portable extinguisher or fixed system replaced and the extinguisher or fire extinguisher system reinspected and found to be in good operating condition.
(b) (e) (No change.)