The Texas Department of Insurance proposes amendments to 28 Texas Administrative Code Chapter 34, Subchapter C, Standards and Fees for State Fire Marshal Inspections §34.302; Subchapter E, Fire Extinguisher Rules §§34.510, 34.514, 34.517, and 34.521; Subchapter F, Fire Alarm Rules §§34.609, 34.615, 34.616, and 34.622 - 34.624; Subchapter G, Fire Sprinkler Rules §§34.713, 34.716, 34.721, and 34.722; Subchapter H, Storage and Sale of Fireworks §§34.808, 34.818, 34.823, and 34.832; Subchapter M, Scheduled Administrative Penalties §34.1302; the repeal of Subchapter J, Stovetop Fire Suppression Device Approval §§34.1001 - 34.1004; and new §34.524 in Subchapter E, §34.631 in Subchapter F, §34.726 in Subchapter G, and §34.833 in Subchapter H. These amendments, repeals, and new sections are necessary to implement statutory changes made by HB 1150 84th Legislature (2015), SB 807, 84th Legislature (2015), and SB 1307, 84th Legislature (2015); clarify the intent of the regulations; revise tags, labels, and stamps; require certain conduct; prohibit certain other conduct; and to amend penalty schedules.

EXPLANATION. This proposal includes amendments, new sections, and repeals to various subchapters relating to the state fire marshal.

Throughout the proposed amendments nonsubstantive changes are proposed. These changes change "shall" to the more precise "must," "may," or "is." Other nonsubstantive changes include the addition of oxford commas, changes is capitalization, removing unnecessary "the" before code references, the substation of other punctuation for semicolons, and the removal of "and/or" in favor of simply "or." These changes are done for purposes of matching agency style, consistency, and to improve readability. None of these nonsubstantive changes alter the meaning of the rules.

SUBCHAPTER C. STANDARDS AND FEES FOR STATE FIRE MARSHAL INSPECTIONS

Section 34.302.

The department adds a definition to §34.302, to clarify the meaning of the term "authority having jurisdiction" with respect to state fire marshal inspections.

The definition clarifies that these are the standards adopted by a nationally recognized standards-making association for fire protection and the standards under which the state fire marshal will inspect, as contemplated in Government Code §417.008. Typically, the entity performing an inspection is also the entity with the authority to adopt a local fire code. But since state fire marshal inspectors conduct examinations of dangerous conditions statewide, including areas with locally adopted fire codes, the authority having jurisdiction may not be the inspecting entity. The proposed definition clarifies this relationship.

SUBCHAPTER E. FIRE EXTINGUISHER RULES

Section 34.510.

The proposed amendment to §34.510, relating to Certificates of Registration, establishes what constitutes an adequately equipped business vehicle to ensure that licensees are properly equipped for the services they provide. The amendment parallels the equipment requirements for certain activities already described in the section. The adopted NFPA standard NFPA 10 specifically requires that the business vehicle be equipped with the applicable service manual when the licensee or licensed firm is servicing certain equipment. Failure to have these reference materials available in the field harms the licensee's or licensed firm's ability to adequately service life-saving fire extinguishing devices.

Section 34.514.

The proposed amendment to §34.514, relating to Applications, adds a requirement for the applicant to furnish, along with the application for a license, a copy of the applicant's criminal history report. Under the current rules, the department requests the applicant's criminal history report after it receives the application, which causes delays in processing the application. Requiring the applicant to provide their own criminal history report will expedite application processing. Some individuals, primarily those living outside of Texas, may need to have fingerprints taken by the Texas Department of Public Safety's vendor and then processed.

Section 34.517.

The proposed amendment to §34.517, relating to Installation and Service, clarifies the requirements for fixed fire extinguisher systems. The amendment adds language that allows installation and servicing to comply with a standard adopted by the political subdivision in which the system is installed. In general, the state fire marshal adopts National Fire Protection Association (NFPA) standards, or other standards, when those standards are revised. Local governments may lag behind. This change provides greater flexibility in allowing licensed persons to perform services consistent with the standards adopted by the political subdivision where the system is installed. Another proposed change requires that the service tag indicates temperature and quantity for fusible metal alloy fixed-temperature sensing elements; this will help ensure the safe maintenance and service of these systems. New subsection (k) is added to address pre-engineered dry chemical fixed fire extinguishing systems requirements. This provision was previously in the section, but had been inadvertently deleted in an earlier rule adoption.

Section 34.521.

The proposed amendment to §34.521, relating to Red Tags, requires notification to the authority having jurisdiction (AHJ) when a tag is corrected. The rules already require the licensee or licensed firm to notify the AHJ when they identify a problem, but this amendment will help AHJs follow up with building owners or representatives to determine when they have fixed an unsafe condition. The proposed notification requirement is similar to the existing requirement for licensees or licensed firms to notify an AHJ of a tagged device, and it is consistent with NFPA 17A Standard for Wet Chemical Extinguishing Systems.

Section 34.524.

New §34.524, relating to Military Service Members, Military Veterans or Military Spouses reflects the statutory protections as provided in Occupations Code Chapter 55 and as amended by SB 807 and SB 1307. The new rule puts all military-related waivers and exemptions in one section so that affected persons are on notice that the provisions may apply to them. Subsection (a) implements SB 807, and provides for waiver of application and examination fees for certain military service members, military veterans, and military spouses. Subsection (b) implements SB 1307, Section 8, and provides specific credit for verified military service with respect to apprentice requirements. Subsection (c) implements SB 1307, Section 4, and provides for the extension of license renewal deadlines for certain military service members. Subsection (d) implements SB 1307, Section 5, and provides for waiver of license prerequisites for certain military service members, military veterans, and military spouses. Other benefits, exemptions, or waivers that are due to military service members, military veterans, and military spouses as provided in state or federal law may also apply.

SUBCHAPTER F. FIRE ALARM RULES

Section 34.609.

The proposed amendment to §34.609, relating to Approved Testing Organization, includes the fire marshal's recognition of another approved testing organization, the Electronic Security Association (ESA), as a testing standards organization for testing license applicants. Insurance Code §6002.156 provides that the state fire marshal may adopt rules as necessary to implement examination requirements. Insurance Code §6002.158 provides that training schools must be approved by the state fire marshal. The state fire marshal has reviewed ESA's application, course, and testing curriculum and has determined that it is an approved organization for purposes of the Fire Alarm Rules. The ESA materials and course for the residential alarm license provides an acceptable level of training.

Section 34.613.

The proposed amendment to §34.613, relating to Applications, adds a requirement for the applicant to furnish, along with the application for a license, a copy of the applicant's criminal history report. Under the current provisions, the department requests the criminal history from the Texas Department of Public Safety after receiving an application, which delays the application approval process. Requiring that applicants provide their criminal history report with their application will expedite the application approval process. The criminal history report process may require some applicants, primarily those living outside of Texas, to have fingerprints taken by the Texas Department of Public Safety's vendor and then processed. Proposed §34.613(b)(1) includes additional language that specifies the general content for the qualifying test as part of a training school for a residential fire alarm technical license. The change clarifies an ambiguity that existed in the content of the residential fire alarm technician training school instruction. Other changes are proposed to accommodate ESA as a testing standards organization, and for consistency with the proposed changes to §34.609.

Section 34.615.

The proposed amendment to §34.615, relating to Test, are in conjunction with the approval of ESA in §34.609, and add ESA to the list of organizations that may conduct technical qualifying tests.

Section 34.616.

The proposal amends §34.616, relating to Sales, Installation, and Service. The amendments to §34.616(b)(1) specify that the licensee who plans fire detection and fire alarm devices or systems must be licensed under the primary registered firm. This amendment is congruent with the structure of the fire alarm licensing under Insurance Code Chapter 6002. The amendments to§34.616(b)(4) add servicing to the list of functions that must be done in accordance with the adopted standards. The amendments also delete the provision related to the Tentative Interim Amendment published by the NFPA and allow for system planning, installation, and servicing if it complies with a more recent standard adopted by the political subdivision in which the system is installed. This change allows greater flexibility in allowing licensed persons to perform services consistent with the standards adopted by the political subdivision. The amendments to §34.616(c) establish a two-year record keeping requirement for firms. This requirement is consistent with the adopted NFPA 72 requirements. Additionally, the amendment specifies that the state fire marshal or the state fire marshal's representative can examine the operation records for service, maintenance, testing, and certification. The requirements for storage and access of these records will assist the state fire marshal with fair, thorough, and consistent regulation of licensed firms.

Section 34.622.

The proposed amendment to §34.622, relating to Inspection/Test Labels, creates two new subsections for licensees and licensed firms to provide notice to AHJs when a new system is installed or a problem is corrected. The change will help AHJs follow up with building owners or representatives. Section 34.622(c) specifies that an inspection/test label may be applied only after an AHJ has approved the new installation. Section 34.622(e) requires notice to the AHJ when a fault or impairment has been corrected.

The department amends §34.622(h) to clarify the size of the adhesive inspection/test label. The amendment to Figure: 28 TAC §34.622(k) provides for indicating the name and address of the business where the inspection occurred. This will assist local AHJs with monitoring the inspections done in their jurisdiction.

Section 34.623.

The proposed amendment to §34.623, relating to Yellow Labels, requires the inspector or service provider to notify the AHJ when a tag is corrected. The rules already require the licensee or registered firm to notify the AHJ when a problem is identified. This change will help AHJs follow up with building owners or representatives to determine whether they have fixed an unsafe condition. This submission of the revised status of a yellow label is similar to the existing requirement to notify an AHJ of a tagged device.

Section 34.624.

The proposed amendment to §34.624(d), relating to Red Labels, requires notification to the AHJ when a tag is corrected. The rules already require the licensee or registered firm to notify the AHJ when a problem is identified. This change will help AHJs follow up with building owners or representatives to determine whether they have fixed an unsafe condition. Submission of the revised status of a red label is similar to the submission of the existing requirement to notify an AHJ of a tagged device.

Section 34.631.

New §34.631 reflects the statutory protections for military service members, military veterans, and military spouses as provided in Occupations Code Chapter 55, and as amended by SB 807 and SB 1307. The new rule puts all military-related waivers and exemptions in one section so that applicable persons are on notice that the provisions may apply to them. Section 34.631(a) implements SB 807, and provides for waiver of application and examination fees for certain military service members, military veterans, or military spouses. Section 34.631(b) implements SB 1307, Section 8, and provides specific credit for verified military service with respect to apprentice requirements. Section 34.631(c) implements SB 1307, Section 4, and provides for the extension of license renewal deadlines for certain military service members. Section 34.631(d) implements SB 1307, Section 5, and provides for waiver of license prerequisites for certain military service members, military veterans, and military spouses. Other benefits, exemptions, or waivers that are due to military service members, military veterans, and military spouses as provided in state or federal law may also apply.

SUBCHAPTER G. FIRE SPRINKLER RULES

Section 34.713.

The proposed amendment to §34.713 deletes requirements to submit the examination test score. Proof of National Institute for Certification in Engineering Technologies (NICET) certification at Level II demonstrates sufficient training and knowledge. The proposed change also eliminates a potential redundancy for applicants who already have a Responsible Managing Employee (RME) General license, because RME general licensees already have demonstrated knowledge at a NICET Level III, which means they have demonstrated competency at least equivalent to NICET Level II. The proposed amendment to §34.713 also adds a requirement for the applicant to furnish, along with the application for a license, a copy of the applicant's criminal history report. Under the current provisions, the department requests the criminal history from the Texas Department of Public Safety after receiving the application, which delays the application approval process. Requiring that applicants provide their criminal history report with their application will expedite the application approval process. Some individuals, primarily those living outside of Texas, may need to have fingerprints taken by the Texas Department of Public Safety's vendor and then processed.

Section 34.716.

The proposed amendment to §34.716, relating to Installation, Maintenance, and Service deletes language so that the system planning, installation, and servicing to comply with a standard adopted by the political subdivision in which the system is installed, and provides that it is consistent with similar provisions in this chapter. This change provides greater flexibility at the local level by allowing licensees to perform services consistent with the standards adopted by the political subdivision in which the system is installed. The amendments to §34.716(c) establish a record keeping requirement for firms. This requirement is consistent with the NFPA 13 requirements.

Section 34.721.

The proposed amendments to §34.721, relating to Yellow Tags, adds that the licensee or licensed firm is required to notify the AHJ when a tag is corrected. The rules already require the licensee or licensed firm notify the AHJ when a problem is identified. This change will help AHJs follow up with building owners or representatives to determine whether they have fixed an unsafe condition. Submitting the notification of a revised status of a tag is similar to the existing requirement to notify an AHJ of a tagged device.

Section 34.722.

The proposed amendment updates Figure: 28 TAC §34.722(h) to provide for new exemplar years. The proposed amendment includes a specification that the inspection/test label be approximately three-inches high and three-inches wide.

Section 34.726.

New §34.726, relating to Military Service Member, Military Veterans or Military Spouses, reflect the statutory protections for military service members, military veterans, and military spouses as provided in Occupations Code Chapter 55 and as amended by SB 807 and SB 1307. The proposed new rule puts all military-related waivers and exemptions in one section so that applicable persons are on notice that the provisions may apply to them. Section 34.726(a) implements SB 807, and provides for waiver of application and examination fees for certain military service members, military veterans, or military spouses. Section 34.726(b) implements SB 1307, Section 8, and provides specific credit for verified military service with respect to apprentice requirements. Section 34.726(c) implements SB 1307, Section 4, and provides for the extension of license renewal deadlines for certain military service members. Section 34.726(d) implements SB 1307, Section 5, and provides for waiver of license prerequisites for certain military service members, military veterans, and military spouses. Other benefits, exemptions, or waivers due to military service members, military veterans, and military spouses as provided in state or federal law may also apply.

SUBCHAPTER H. FIREWORKS RULES (formerly STORAGE AND SALE OF FIREWORKS)

The proposed name of the subchapter changes from "Storage and Sale of Fireworks" to the more concise "Fireworks Rules." This nonsubstantive change conforms the title of the subchapter to the similar Fire Extinguisher Rules, Fire Alarm Rules, and Fire Sprinkler Rules elsewhere in the chapter and is intended to improve clarity and organization of the rules.

Section 34.808.